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High Court dismisses challenge to refusal for 320-home greenfield scheme

The High Court has found that a planning inspector did not make errors of law in his decision to dismiss an appeal that would have permitted a 320-home development on a greenfield site to the south of Stafford.

Developer Milwood Land (Stafford) (MLS) challenged planning inspector Keith Manning's decision (27-page / 247 KB PDF) to dismiss its appeal against Stafford Borough Council's refusal of outline planning permission for the scheme. Manning had considered that greenfield development outside three strategic development areas allocated for around 5,900 homes in the adopted Plan for Stafford Borough (PSB) would conflict with the policies of the PSB read as a whole and was unnecessary in light of the Council's ability to demonstrate a five year supply of housing land.

MLS had argued that Manning had incorrectly interpreted a policy of the PSB that listed criteria for the future establishment of settlement boundaries in a site allocations document. Manning had decided that permitting development would contradict a paragraph of the policy that allowed the release of greenfield sites "only where insufficient sites on previously developed land, in sustainable locations, are available to meet new development requirements".

The developer claimed that the policy applied only to the establishment of settlement boundaries and decision-making following their establishment. High Court judge Lord Justice Hickinbottom disagreed with this submission. "On its face, [the policy] applies, without any restriction to 'development proposals', which is clearly broad enough to apply to applications and appeals in respect of specific development whenever made," said the judge. "Development plans are full of broad statements of policy which have to be read in their proper context."

MLS had also argued that the planning inspector had failed properly to consider whether the Council could demonstrate a five year supply of housing land at the time of his decision. It said Manning had attached considerable weight to the conclusions of the inspector who had examined the PSB, which were based on figures from March 2013, whereas March 2014 figures had been available at the time of the planning appeal decision.

Mr Justice Hickinbottom said this ground of challenge was "simply not arguable". The judge said Manning had made several references to the "current" position with regard to the housing supply, and had considered "in some substantial detail" the content and validity of the Council's March 2014 statement on its ability to demonstrate a five year supply. Mr Justice Hickinbottom found that, whilst "the inspector did not find this issue and easy one to judge ... he did not arguably err in law in his analysis or conclusion".

The judge was similarly unimpressed by MLS's argument that the inspector had failed properly to address its claim that the housing policies in the PSB were out-of-date in the absence of an adopted site allocations document. Manning had specifically addressed the fact that, although the PSB was "but one part of the eventual completed development plan [that] does not diminish its importance or relevance", noted Mr Justice Hickinbottom. "A policy is not 'out-of-date' simply because in the future it will, or might be, supplemented in a further development plan document", added the judge.

Planning expert Helen Stewart of Pinsent Masons, the law firm behind Out-Law.com said: "The National Planning Policy Framework (NPPF) requires local planning authorities to identify a five-year housing land supply which is deliverable and kept up to date.  Where relevant policies are not kept up to date, the NPPF advises that planning permission should be granted unless any adverse impacts would significantly and demonstrably outweigh the benefits, or other policies exist in the NPPF which indicate that planning permission should not be granted."

"Whilst the developer was ultimately unsuccessful on this occasion, this decision serves as a reminder to local authorities of the importance of maintaining an updated and deliverable five-year supply of housing land," said Stewart. "Failure to do so risks decision-making by appeal instead of at a local level. The decision also illustrates the need for caution when relying on interim supply calculations. The PSB was based on figures produced in March 2013, whereas more recent figures from March 2014 were available when the appeal was being decided. Interim supply calculations have been found to carry significantly less weight than those which have been robustly tested through examination."

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