High Court dismisses appeal over alleged breach of neighbourhood plan

His Honour Judge Jarman KC, sitting as a judge of the High Court, heard from Edith Weston Parish Council, in a case it brought against the Secretary of State for Housing, Communities and Local Government and Rutland County Council.

He said it was not in dispute that the inspector made an error in allowing an appeal by developer Philip Davies and granting outline planning permission for 62 dwellings in the countryside.

The judge said: “The error was that he proceeded on the basis that the Edith Weston Neighbourhood Plan 2023-2041 (EWNP) had not been made and took it into account as a material consideration.

“Some five days earlier as a result of a referendum the plan became part of the development plan and replaced the previous 2012-2026 neighbourhood plan. For reasons which remain unclear it appears that no-one bothered to tell the inspector.”

Edith Weston argued this mistake meant that the decision should be quashed.

But the Secretary of State said that had this mistake not been made, the inspector would necessarily still have allowed the appeal.

A second ground of challenge was that the inspector made a further mistake in not applying the National Planning Policy Framework which provides that in certain circumstances the adverse impact of allowing housing development that conflicts with a neighbourhood plan is likely significantly and demonstrably to outweigh the benefits. The Secretary of State maintained that was not applicable.

On the first ground, HHJ Jarman said the only issue was whether the outcome would inevitably have been the same if the inspector had treated the new neighbourhood plan as replacing the old and so becoming part of the development plan with the presumption and priority accorded to it by statute, rather than just a material consideration.

He said: “In my judgment, reading the decision letter fairly as a whole, although the EWNP was referred to as a material consideration and although no specific reference was made to the weight to be attached to [it], it is clear that the inspector had regard to the fact that it was at a very advanced stage of preparation.”

A housing land supply shortfall and the likelihood that more housing sites would need to be addressed, probably in the countryside, meant the conflict carried only moderate weight.

HHJ Jarman said: “In my judgment because of this shortfall, such weight would have inevitably been the same whether there were three, rather than two, development plan policies against development in the countryside or outside development limits.”

He added: “Accordingly, whilst an error was made, there is no justification for quashing the decision under ground 1.”

The second ground concerned whether the inspector was correct to say the NPPF was not engaged because the EWNP did not include allocations to meet its identified housing requirement.

HHJ Jarman said: “NPPF[14] is couched in clear and simple terms and should be interpreted as such. The EWNP specifically disallows allocation, which is to be found elsewhere. In my judgment ground 2 is not made out.”

Mark Smulian