Decision-making

NPPF 48

Starbones Ltd [2020] EWHC 526 (Admin), Lang J
Richard Turney appeared for the Claimant
Gwion Lewis appeared for the Secretary of State
James Maurici QC appeared for the Third Defendant

“85.      At DL 16, the Secretary of State applied paragraph 48 of the Framework to these facts, and decided that, as the DRLP [emerging policy] was still at a relatively early stage, any objections were not yet fully resolved and its policies might still be subject to change, the DRLP policies carried limited weight.  This was an exercise of judgment on the part of the Secretary of State, not a misinterpretation of the Framework.”

R (Ewans) v Mid Suffolk DC [2021] EWHC 511 (Admin), Holgate J

“55.      Mr Merrett accepts that the relevant parts of para.48 of the NPPF in this case are subparagraphs (a) and (b). They ascribe weight to an emerging development plan according to the procedural stage it has reached and the extent to which there are unresolved objections to policy. Plainly, in this case, both documents were at a relatively early stage and the relevant policies were controversial and await examination. Nevertheless, Mr Merrett accepts – rightly, in my judgment – that para.48 of the NPPF is not exhaustive as to the planning considerations which may be taken into account by a decision-maker when evaluating how much weight to place upon emerging local policy. Indeed, para.48 could not be so prescriptive. Accordingly, the application of para.48 of the NPPF did not have to be the final determinant of how much weight to give to each set of emerging policies. That was a matter of judgment for the defendant, subject only to review on Wednesbury principles. I find it impossible to say as a matter of law that the defendant’s approach, relying on the assessment of housing need and the consequent “direction of travel”, was improper.”

East Riding of Yorkshire Council [2021] EWHC 3271 (Admin)
Matthew Henderson appeared as Junior Counsel for the Claimant

“42. Firstly, as is obvious from paragraphs 48 and 73 of the Framework, there is no basis to assume that the imminent use of a local housing need figure as a result of the approach of the fifth anniversary of the adoption of strategic policies is to be equated with the housing requirement in an emerging plan which is soon to be adopted having been found sound following independent scrutiny. The two housing requirement figures are derived from different sources and treated differently in national policy. In particular the first defendant points out that the housing requirements in an emerging local plan which has been found sound will arise from both calculations of need and also the consideration of local constraints, leading to the satisfaction of the test of the soundness in relation to the figure. This is quite different from the calculation of the local housing need using set inputs and a universally applicable formula provided for derivation of the standard method requirement. The second defendant makes similar submissions, and also observations in relation to the claimant’s contentions about the relationship between planning policy and public law principles that, whilst they are of interest, they do not arise in the present case.

43. I am in no doubt that the first and second defendants’ submissions in relation to ground 2 are clearly correct. The Inspector is a specialist tribunal and therefore can be assumed to have a familiarity with, in particular, the Framework which is a compendium of policies that she will be working with on a daily basis. Paragraph 48 of the Framework is clear and unambiguous, and I accept the submission that in paragraph 32 of the decision letter the Inspector demonstrates that she has clearly understood the policy which it contains. Whilst the claimant submits that the Framework cannot render a material consideration of something which would not otherwise be a material consideration, and that paragraph 48 does not make an emerging plan a material consideration as it would be one in any event, none of this takes the claimant’s arguments any further forward.

44. It was neither irrational, nor a misunderstanding of paragraph 48 of the Framework for the Inspector to treat as materially different the situation where paragraph 48 of the Framework was engaged in the light of an emerging sound plan providing a new housing requirement, and the situation where imminent use of a local housing need figure as a result of the approach of the fifth anniversary of the adoption of a local plan was about to occur. Whilst both these possibilities are imminent and certain, that does not mean that they are to be treated as equivalent in planning policy terms in the absence of such policy being specified. Apart from the possibility of them being imminent and certain they are in their nature two quite different housing requirements. The housing requirement from the emerging local plan is one which has been planned and prepared for taking account of all of the requirements necessary to demonstrate to independent scrutiny that the figure is sound. The local housing needs figure produced by the standard methodology is produced through the application of a set calculation. As is clearly identified in the Inspector’s reasoning, they both have different roles to play when viewed through the prism of national planning policy. I am unable to accept either that the Inspector misinterpreted paragraph 48 of the Framework, or alternatively reached a conclusion which was irrational.”

NPPF 57

R (Holborn Studios Ltd) v London Borough of Hackney [2020] EWHC 1509 (Admin), Dove J

“63. In my view there are some clear principles set out in the Framework and the PPG to which it refers. Firstly, in accordance with the Framework viability assessments (where they are justified) should reflect the approach set out in PPG, and be made publicly available. Secondly, and in following the approach recommended in the Framework and the PPG, standardised inputs should be used including, for the purpose of land value, a benchmark land value based upon existing use value plus as described in the PPG. Thirdly, as set out in the PPG, the inputs and findings of a viability assessment should be set out “in a way that aids clear interpretation and interrogation by decision-makers” and be made publicly available save in exceptional circumstances. As the PPG makes clear, the preparation of a viability assessment “is not usually specific to that developer and thereby need not contain commercially sensitive data”. Even if some elements of the assessment are commercially sensitive, as the PPG points out, they can be aggregated in a published viability assessment so as to avoid disclosure of sensitive material.

64. … It is clear from the material in the Framework and the PPG that save in exceptional circumstances the anticipation is that viability assessments, including their standardised inputs, will be placed in the public domain in order to ensure transparency, accountability and access to decision-taking for communities affected by development. The interests which placing viability assessments into the public domain serve are clearly public interests, which in my view support the contention that such assessments are not exempt information unless the exceptional circumstances spoken to by the PPG arise and solely an executive summary should be put in the public domain.”