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High Court judgment gives guidance on interpretation of paras 14 and 49 of the NPPF

DATE: 11 Oct 2013

The High Court (Lang J.) today handed down judgment in William Davis Limited v Secretary of State for Communities and Local Governments.

This was a s. 288 challenge to the dismissal of an appeal under s. 78 of the TCPA 1990, against the failure of the local planning authority, North West Leicestershire District Council to give notice within the prescribed period on an application for outline planning permission for residential (and associated) development on land north of the A511 Stephenson Way, Coalville, Leicestershire.

The judgment provides some guidance on the meaning of paras. 14 and 49 of the NPPF.

Thus the Judge ruled:

“29. The Claimants accepted that the first bullet point in paragraph 14 of the NPFF did not apply because the proposed development was not in accordance with the existing development plan, as the site was situated in an area designated as “Green Wedge”, which was protected from development by Policy E20. 
30. However, the second bullet point in paragraph 14 applied, because Policy E20 [on Green Wedges] should have been treated as out-of-date.   First, because the planning authority was not able to demonstrate a five year supply of deliverable housing sites ...
37. In my judgment, the Inspector and the Secretary of State directed themselves correctly by asking the question whether the proposed development was “sustainable development”.  At the Inquiry, the Claimants did not dissent from the Inspector’s analysis that the fourth main issue was “whether the appeal scheme represents sustainable development, to which the Framework’s “presumption in favour” should apply” (paragraph 317).  In their written submissions to the Inspector, the Claimants expressly referred to this question, I accept Mr Maurici’s submission that paragraph 14 NPFF only applies to a scheme which has been found to be sustainable development.  It would be contrary to the fundamental principles of NPFF if the presumption in favour of development in paragraph 14 applied equally to sustainable and non-sustainable development.
46. The Inspector and the Secretary of State also understood and acknowledged the tension between the NPPF’s policy in favour of delivering housing, and its policy in favour of protecting green spaces, in section 11, entitled “Conserving and enhancing the natural environment”. Planning authorities are directed to plan positively for the protection, enhancement and management of networks of biodiversity and green infrastructure (paragraph 114). “Green Infrastructure” is defined in the Glossary as “a network of multi-functional green space, urban and rural, which is capable of delivering a wide range of environmental and quality of life benefits for local communities.” The Inspector and the Secretary of State both concluded that the site was a very important part of the existing green infrastructure of Coalville and its environs.  As Lord Reed said in Tesco Stores at [19] (paragraph 23 above), planning policies often contain broad statements of policy, many of which may be mutually irreconcilable, so in a particular case, one must give way to another.  The task of reconciling different strands of planning policy on the facts of a particular case has been entrusted to the planning decision-maker.  Such planning judgments will only be subject to review by this court on very limited grounds.
47. The Claimants sought to argue that Policy E20 should have been treated as one of the “[r]elevant policies for the supply of housing” within the meaning of NPPF, paragraph 49 because the restriction on development potentially affects housing development.  I do not consider that this is a correct interpretation of paragraph 49. Paragraph 49 is located in the section of the NPPF dedicated to housing and it refers to policies for “the supply of housing”, of which there are many in local, regional and national plans.  It was agreed that the housing policy in the Development Plan in this case, was out-of-date by virtue of paragraph 49 (see the DL, paragraph 22).  However Policy E20 does not relate to the supply of housing, and therefore is not covered by paragraph 49.  I was shown numerous Inspector’s decisions in which paragraph 49 had been applied but these were distinguishable from this case because the policies related specifically to housing.  There were a couple of exceptions, but insofar as Inspectors have applied paragraph 49 to policies which did not relate to housing, I respectfully suggest that they did so in error. In my view the implementation provisions in Annex 1 govern policies which are not specifically related to housing, not paragraph 49.”

James Maurici QC appeared for the Secretary of State.