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.”

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.”