Taking into account the impacts and benefits of deliverable schemes

The High Court has allowed a statutory challenge against the Secretary of State’s dismissal of an appeal in relation to a 1,200 dwelling scheme. Christopher Lockhart-Mummery QC and Heather Sargent explain why.

In Satnam Millenium Ltd v SSHCLG [2019] EWHC 2631 (Admin) the High Court (Sir Duncan Ouseley, sitting as a High Court Judge) has allowed the application made by Satnam Millenium Ltd (“Satnam”) under s. 288 of the Town and Country Planning Act 1990 against the Secretary of State’s dismissal of Satnam’s appeal in relation to Peel Hall, Warrington.

Satnam had sought planning permission on appeal for a new residential neighbourhood of up to 1,200 dwellings. The Secretary of State (agreeing with his Inspector’s conclusions and recommendation) dismissed Satnam’s appeal on highways, air quality and deliverability grounds. He reasoned as follows:

“The Secretary of State recognises that, if the scheme were to be considered deliverable, the fact that it could provide up to 1200 dwellings, 30% of which would be affordable, would attract significant weight. However, he considers that the merits of the scheme need to be left for further consideration once the issue of control over all parts of the site has been resolved and it becomes capable of implementation”.

The Judge held that the Secretary of State’s approach was irrational, in that he had allowed for the impacts of a deliverable scheme without the benefits of the scheme that would produce those impacts. It was additionally irrational in that he had treated lack of deliverability as an adverse factor in itself, as opposed to simply an important factor raised to neutralise benefits.

The Judge also held that whilst the conclusion that the appeal scheme was not deliverable as proposed was lawful, the issue of deliverability had not been legally relevant to the refusal of planning permission (i.e. it had not been a material consideration), at least on the reasoning provided:

“I cannot discern here what material planning consideration could warrant a refusal of permission on the grounds that the proposal could not be implemented. There were no competing sites. There was no competing proposal for this site which could find greater favour with Homes England or the local bus company, which this permission might stultify. There was no suggestion that an unimplemented planning permission would in some way blight the site or discourage other proposals with better prospects. […] Of course, if it is not or cannot be implemented, it can bring no benefits by way of housing. But it is impossible to see here why that should be a factor telling against the grant of permission unless that has some planning implications. Those are not identified”.

The Secretary of State’s decision was quashed on both grounds.

Christopher Lockhart-Mummery Q.C. and Heather Sargent are barristers at Landmark Chambers. They appeared for the Claimant, instructed by Town Legal LLP.