Council fails in High Court challenge to grant of permission for 350-dwelling scheme

South Gloucestershire Council has failed in a High Court challenge to a planning inspector’s decision to allow a developer’s appeal against refusal of planning permission for a 350-dwelling development.

In South Gloucestershire Council v Secretary of State for Housing, Communities And Local Government [2019] EWHC 181 (Admin) the local authority applied under s.288 of the Town and Country Planning Act 1990 to quash the inspector’s decision made on 3 May 2018 in favour of Welbeck Strategic Land.

The proposed development would also include a 70 unit elderly care facility, community and commercial facilities and associated public open space and infrastructure.

South Gloucestershire had refused the developer outline planning permission on 9 March 2017, contrary to the advice of its officers. This was for inter alia the following reason: "The proposed development is speculative in nature and would not result in a comprehensively planned development, comprising the vision for Thornbury. The proposal is also contrary to points 1,2,3,4,7,8 and 9 for Policy CS32 and point 5 of Policy C55 of the adopted South Gloucestershire Core Strategy."

Following a six-day hearing a planning inspector granted Welbeck permission, subject to conditions.

South Gloucestershire Council was refused on the papers permission to challenge the inspector's decision. However, at an oral renewal hearing it was allowed to bring its claim in respect of one ground only, namely, that the inspector failed to provide adequate reasons for rejecting the council's submission that permission should be refused on the ground of prematurity, in the light of the emerging Joint Spatial Plan, which was to be followed by the emerging South Gloucestershire Local Plan (2018 – 2036).

In his decision letter the inspector said he had given “little weight” to the prematurity argument. “This did not form part of the council's reasons for refusal and seemed to miss the point of the planning application,” he wrote. “The application was submitted, following extensive discussions with officers, to address the acknowledged shortfall in housing in South Gloucestershire. It was not an attempt to leap-frog the emerging plan process; it is an attempt to address past failures to provide sufficient housing."

South Gloucestershire submitted that the inspector's reasons were inadequate because he did not explain why he had given "little weight" to the council’s submissions on prematurity, nor did he address the criteria in the Planning Practice Guidance ("PPG").

Mrs Justice Lang dismissed the council’s claim. She said: “The parties were well aware of the competing submissions about prematurity and the application of the PPG. There was not any real, as opposed to forensic, doubt as to what the inspector's reasons were. In the course of [counsel for South Gloucestershire’s] oral submissions, it became clear that the council's main challenge was to the substance of the Inspector's reasons, not their adequacy or intelligibility.”

The judge also said she was unable to accept that the way in which the inspector formulated his reasons substantially prejudiced the council. “The inspector's reasons were specific to this application. It is open to the council to seek to distinguish this case from other appeals and applications, concerning different proposals, at other sites. It is also open to the council to submit that the inspector's approach to the PPG should not be followed in other cases.”

A South Gloucestershire Council spokesperson said: “We are committed to plan-led development so that South Gloucestershire can grow to meet the future demand for housing in a sustainable way and we will robustly challenge decisions that undermine this.

"We are disappointed that this particular decision has gone against us, however we will continue to work during this year on an updated Local Plan that will allow us to direct how and where our communities grow and where they cannot.

"Government analysis late last year confirmed that we have an adequate supply of land for the growth we need, which will act as a protection against speculative development of this kind which is contrary to our plans for the future.”