AC-2025-LON-001100 - [2025] EWHC 2742 (Admin)

Before a DPD is submitted for examination, a local planning authority (“LPA”) must “have complied with any relevant requirements contained in regulations under this part”: section 20(2)(a) PCPA 2004.

The purpose of the examination by Inspectors appointed by the Secretary of State is to determine whether, inter alia, it satisfies regulations made under section 36 relating to the preparation of DPDs (section 20(5)(a) PCPA 2004), and whether it is sound (section 20(5)(b) PCPA 2004).

The test of “soundness” is not defined in law but paragraph 35 of the National Planning Policy Framework (“NPPF”) (Footnote: ⁵) provided that a plan is sound if it is:

“a)

Positively prepared – providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs [FN 21 Where this relates to housing, such needs should be assessed using a clear and justified method, as set out in paragraph 61 of this Framework.]; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development;

b)

Justified – an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence;

c)

Effective – deliverable over the plan period, and based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground; and

d)

Consistent with national policy – enabling the delivery of sustainable development in accordance with the policies in this Framework and other statements of national planning policy, where relevant.”

If inspectors consider after examination that, in all the circumstances, it would not be reasonable to conclude that the document satisfies the requirements mentioned in section 20(5)(a) PCPA 2004, then they must recommend non-adoption of the document and give reasons for the recommendation: section 20(7)-(7A) PCPA 2004.

By section 20(7C) PCPA 2004, if asked to do so by the LPA, the person appointed to carry out the examination must recommend modifications of the document that would result in it (a) satisfying the requirements mentioned in section 20(5)(a) PCPA 2004 and (b) being sound.

If the inspectors recommend the DPD is adopted, then the authority may adopt it as it is or with modifications that (taken together) do not materially affect the policies set out in it: section 23(2) PCPA 2004.

If the inspectors recommend the DPD is not adopted but make recommendations of MMs under section 20(7C) PCPA 2004, the LPA may adopt the DPD with the MMs or with the MMs and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the document if it was adopted with the MMs but no other modifications: section 23(3) PCPA 2004.

LPAs have no power to change the MMs or to adopt the DPD if adoption is not recommended (R (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 359 (Admin), per Lieven J. at [48]).

By section 113(2), (3) PCPA 2004, a DPD must not be questioned in any legal proceedings other than an application to the High Court on the ground that it is not within the appropriate power or a procedural requirement has not been complied with. The Court applies conventional public law principles: Gallagher Homes Ltd v Solihull MBC [2014] EWCA Civ 1610, per Laws LJ at [2]. The Court can only consider whether an error of law has been made; it cannot consider the merits of the Council’s proposed policy: Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) per Holgate J. at [5].

The assessment of “soundness” requires an assessment of whether the plan is “positively prepared, justified, effective and consistent with national policy”. This undeniably involves a very considerable amount of planning judgment, the legality of which can only be challenged on the basis of general public law principles (Cooper Estates Strategic Land Limited v Royal Tunbridge Wells Borough Council [2017] EWHC 224 (Admin) per Thornton J. at [20]).

In Keep Bourne End Green, at [58], Holgate J. confirmed that the judgment made by an inspector as to whether a submitted plan with any MMs is “sound” is central to the legal ability of the authority to adopt that document as part of its development plan. In Barratt Development Ltd v City of Wakefield MDC [2010] EWCA Civ 897, Carnwath LJ said, at [33]:

“soundness was a matter to be judged by the Inspector and the Council and raises no issue of law unless their decision is shown to have been irrational, or they are shown to have ignored the relevant guidance or other considerations which were necessarily material in law.”

It is well-established that whilst the interpretation of planning policy is a matter of law, its application is a matter of judgment falling within the exclusive jurisdiction of the planning decision-maker (subject to review only on rationality grounds). The Court has warned against the danger of ‘dressing up’ a challenge to application as one of interpretation, see Trustees of the Barker Mill Estates v Test Valley BC and Secretary of State [2017] PTSR 408 per Holgate J. (as he then was):

“22.

… many policies are framed in language the application of which to a given set of facts requires the exercise of judgment. Matters of that kind fall within the jurisdiction of planning authorities as decision-makers and their exercise of judgment can only be challenged in the Courts if it is irrational or perverse... Therefore, in a case where the decision-maker has had regard to a policy which he was required to take into account, it is essential for practitioners to keep in mind the distinction between interpretation and application of policy and the very different functions of the court in each area…

83.

… Because of the critical difference between these two types of challenge as to the juridical basis upon which a court may intervene, a claimant must not dress up what is in reality a criticism of the application of policy as if it were a misinterpretation of policy.

84.

Normally a claimant fails to raise a genuine case of misinterpretation of policy unless he identifies (i) the policy wording said to have been misinterpreted, (ii) the interpretation of that language adopted by the decision-maker and (iii) how that interpretation departs from the correct interpretation of the policy wording in question. A failure by the claimant to address these points, as in the present case, is likely to indicate that the complaint is really concerned with application, rather than misinterpretation, of policy.”

In St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, [2018] PTSR 746, at [6] – [7], Lindblom LJ set out the principles upon which the Court will act in an application for statutory review under section 288 Town and Country Planning Act 1990. Those principles are also relevant to an application for statutory review under section 113 PCPA 2004. Lindblom LJ held:

“6.

In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the “seven familiar principles” that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are:

“(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981)42 P. & C.R. 26, at p.28).

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the “principal important controversial issues”. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B-G).

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or no weight at all” (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6).

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 22).

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7)

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. in Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).”

7.

Both the Supreme Court and the Court of Appeal have, in recent cases, emphasized the limits to the court's role in construing planning policy (see the judgment of Lord Carnwath in Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] UKSC 37, at paragraphs 22 to 26, and my judgment in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, at paragraph 41). More broadly, though in the same vein, this court has cautioned against the dangers of excessive legalism infecting the planning system – a warning I think we must now repeat in this appeal (see my judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, at paragraph 50). There is no place in challenges to planning decisions for the kind of hypercritical scrutiny that this court has always rejected – whether of decision letters of the Secretary of State and his inspectors or of planning officers' reports to committee. The conclusions in an inspector's report or decision letter, or in an officer’s report, should not be laboriously dissected in an effort to find fault (see my judgment in Mansell, at paragraphs 41 and 42, and the judgment of the Chancellor of the High Court, at paragraph 63).”

In Hopkins Homes Ltd v Secretary of State for Communities and LocalGovernment [2017] 1 WLR 1865, Lord Carnwath JSC held at [25]:

“… the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly.”

In South Buckinghamshire District Council v Porter(No 2) [2004] 1 WLR 1953, Lord Brown reviewed the authorities and gave guidance on the nature and extent of the duty to give reasons, at [36].

In CPRE Surrey v Waverley BC [2019] EWCA Civ 1826, Lindblom LJ held, at [72], that an inspector conducting a local plan examination is required to give reasons for his conclusions and recommendations. The requisite standard of reasons is that set out in the South Bucks DC case. He added, at [75]:

“Generally at least, the reasons provided in an inspector’s report on the examination of a local plan may well satisfy the required standard if they are more succinctly expressed that the reasons in the report or decision letter of an inspector in a s.78 appeal against the refusal of planning permission. As Mr Beglan submitted, it is not likely that an inspector conducting a local plan examination will have to set out the evidence given by every participant if he is to convey to the “knowledgeable audience” for his report a clear enough understanding of how he has decided the main issues before him.”

In Cherwell Development Watch Alliance v Cherwell DC & Anor [2021] EWHC 2190 (Admin), Thornton J. held:

“24.

The reasons given by an Inspector on the examination of a local plan under s20 PCPA should not be assessed by unqualified application of authorities dealing with reasons on appeals against the refusal of planning permission, notably the oft-cited principles in particular in South Bucks DC v Porter (No.2) [2004] UKHL 33 at [36]. The public examination of a plan is not an inquiry into objections raised by individual parties. The examination is structured around the issues which the Inspector has identified as crucial for his judgment on the soundness of the plan. It alerts parties to the Inspector’s proactive and inquisitorial role; representations do not dictate the structure or focus of the examination. If contentions do not assist him to reach a judgment on the soundness of the plan, he will not spend time at the hearings on them. The hearings are only part of his examination of the soundness of the plan.

25.

Accordingly, the Inspector should reach clear conclusions backed by reasoned judgments on the plan’s compliance with the PCPA 2004, including the requirement of soundness. The report does not summarise the parties’ individual cases, will avoid direct reference to specific representations and will not describe discussions at hearings. But it will explain concisely why the Inspector has reached the views he has on soundness and the compliance issues. Accordingly, reasons may be more succinctly expressed than in a decision letter on a planning appeal (Cooper Estates Strategic Land Assessment v Royal Tunbridge Wells Borough Council [2017] EWHC 224 (Admin) confirmed in CPRE Surrey v Waverley Borough Council v Secretary of State for Housing Communities and Local Government [2019] EWCA Civ 1826).”

The Plan was examined against the 2021 NPPF, which set out policies in relation to the Green Belt in section 13, titled “Protecting Green Belt land”, at paragraphs 137-146.

Paragraphs 137 and 138 described the purpose of the Green Belt as follows:

“137.

The Government attaches great importance to Green Belts. The fundamental aim of the Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.

138.

Green Belt serves five purposes:

(a)

to check the unrestricted sprawl of large built-up areas;

(b)

to prevent neighbouring towns merging into one another;

(c)

to assist in safeguarding the countryside from encroachment; and

(d)

to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.”

Paragraph 139 refers to the establishment of new Green Belts:

“139.

The general extent of Green Belts across the country is already established. New Green Belts should only be established in exceptional circumstances, for example when planning for larger scale development such as new settlements or major urban extensions. Any proposals for new Green Belts should be set out in strategic policies, which should:

a)

demonstrate why normal planning and development management policies would not be adequate;

b)

set out whether any major changes in circumstances have made the adoption of this exceptional measure necessary;

c)

show what the consequences of the proposal would be for sustainable development;

d)

demonstrate the necessity for the Green Belt and its consistency with strategic policies for adjoining areas; and

e)

show how the Green Belt would meet the other objectives of the Framework.”

Paragraphs 140 and 141 give guidance on alterations to existing Green Belt:

“140.

Once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans. Strategic policies should establish the need for any changes to Green Belt boundaries, having regard to their intended permanence in the long term, so they can endure beyond the plan period. Where a need for changes to Green Belt boundaries has been established through strategic policies, detailed amendments to those boundaries may be made through nonstrategic policies, including neighbourhood plans.

141.

Before concluding that exceptional circumstances exist to justify changes to Green Belt boundaries, the strategic policy-making authority should be able to demonstrate that it has examined fully all other reasonable options for meeting its identified need for development. This will be assessed through the examination of its strategic policies, which will take into account the preceding paragraph, and whether the strategy:

a)

makes as much use as possible of suitable brownfield sites and underutilised land;

b)

optimises the density of development in line with the policies in chapter 11 of this Framework, including whether policies promote a significant uplift in minimum density standards in town and city centres and other locations well served by public transport; and

c)

has been informed by discussions with neighbouring authorities about whether they could accommodate some of the identified need for development, as demonstrated through the statement of common ground.”

Paragraph 142 applies to the drawing up of new Green Belt boundaries or reviewing existing boundaries. The reference to offsetting the impact of releasing land from the Green Belt is to improvements to Green Belt land, not additions of land to the Green Belt. It provides:

“142.

When drawing up or reviewing Green Belt boundaries, the need to promote sustainable patterns of development should be taken into account. Strategic policy - making authorities should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards towns and villages inset within the Green Belt or towards locations beyond the outer Green Belt boundary. Where it has been concluded that it is necessary to release Green Belt land for development, plans should give first consideration to land which has been previously-developed and/or is well-served by public transport. They should also set out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.”

Paragraph 143 gives guidance on defining Green Belt boundaries, as follows:

“143.

When defining Green Belt boundaries, plans should:

a)

ensure consistency with the development plan’s strategy for meeting identified requirements for sustainable development;

b)

not include land which it is unnecessary to keep permanently open;

c)

where necessary, identify areas of safeguarded land between the urban area and the Green Belt, in order to meet longer-term development needs stretching well beyond the plan period;

d)

make clear that the safeguarded land is not allocated for development at the present time. Planning permission for the permanent development of safeguarded land should only be granted following an update to a plan which proposes the development;

e)

be able to demonstrate that Green Belt boundaries will not need to be altered at the end of the plan period; and

f)

define boundaries clearly, using physical features that are readily recognisable and likely to be permanent.”