Milwood Land (Stafford) Ltd v Secretary of State for Communities and Local Government & Anor [2015] EWHC 1836 (Admin)

Case No CO/85/2015[2015] EWHC 1836 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue BirminghamDate 30/06/15
Before
MR JUSTICE HICKINBOTTOM
Between
MILWOOD LAND (STAFFORD) LIMITEDClaimants(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendants(2) STAFFORD BOROUGH COUNCILDefendant
Hugh Richards (instructed by Gateley LLP) for ClaimantRichard Honey (instructed by the Government Legal Department) for First Defendant for The Second Defendant was not represented and did not appearHearing Hearing date: 23 June 2015
JudgmentMr Justice Hickinbottom :Introduction
[1]This claim concerns the proposed construction of up to 320 dwellings on greenfield land between Ashflats Lane and the A449 Mosspit, Stafford (“the Site”). An application for planning permission by the Claimants (“the Developers”) was refused by the Second Defendant planning authority (“the Council”); and, after a four-day inquiry, on 3 December 2014 an inspector appointed by the Secretary of State, Keith Manning BA Hons, BTP, MRTPI (“the Inspector”), dismissed the appeal brought by the Claimant under section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”).[2]In dismissing the appeal, the Inspector found: i) The proposed development was not in accordance with Policy SP7 in the Plan for Stafford Borough 2011-31 (“the PSB”) or with the development plan as a whole. ii) The Council could show that it had a five-year supply of housing land. iii) There were no material considerations to justify the grant of permission. Consequently, he concluded that the proposed development was not sustainable, and he refused the appeal.[3]In this application under Section 288 of the 1990 Act, the Developers seek to quash that decision, on three grounds: Ground 1: In finding that the proposed development was not in accordance with the development plan, the Inspector misconstrued and/or misapplied Policy SP7 of the PSB. Ground 2: In finding that there was a five-year supply of housing land, the Inspector misconstrued and/or misapplied the National Planning Policy Framework (“the NPPF”). Ground 3: The Inspector failed to address the Developers’ submission that, whether or not there was a five-year supply of housing land, the development plan was incomplete and thus the relevant policies were out-of-date – so that, under paragraph 14 of the NPPF, planning permission ought to have been granted unless the adverse impact of doing so would significantly and demonstrably outweigh the benefits of the development. Consequently, he erred in law by failing to give adequate and intelligible reasons for rejecting the Developers’ submission.[4]Before me, Hugh Richards appeared for the Developers, and Richard Honey for the Secretary of State; and I thank them for their assistance.

The Legal Background

[5]The relevant legal background is uncontroversial. In relation to planning determinations generally, whether the relevant decision-maker is a local planning authority or an Inspector on behalf of the Secretary of State on appeal, the following propositions, relevant to this claim, are well-established. i) Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a decision-maker must have regard to the provisions of “the development plan”, as well as “any other material consideration”. ii) “The development plan” sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) to include adopted local plans. Section 70(2) of the 1990 Act makes clear that the development plan is a material consideration; but it is more than that, because section 38(6) of the 2004 Act gives it a particular status:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
That requires the proposed development to be in accordance with the development plan looked at as a whole, rather than with every policy in the plan, which may well pull in different directions and some of which may be more relevant to a particular application than others (R v Rochdale Metropolitan Borough Council (2001) 81 P&CR 27 at [44]-[50] per Sullivan J (as he then was), and R (Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878 (“Hampton Bishop PC”) at [33] per Richards LJ). Section 38(6) thus raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; but that presumption is rebuttable by other material considerations. If a proposed development is not in accordance with the development plan read as a whole, with a focus on its relevant objectives and the policies which give effect to those objectives, then there is a presumption against approval (R (TW Logistics Limited) v Tendring District Council [2013] EWCA Civ 9 (“TW Logistics”) at [18] per Lewison LJ, and Crane v Secretary of State for Communities and Local Government [2015] EWHC 4235 (Admin) (“Crane”) at [40], [47] and [51] per Lindblom J). iii) “Material considerations” in this context include statements of central government policy which are now largely set out in the NPPF as supplemented by the Secretary of State’s web-based Planning Practice Guidance (“the PPG”), launched on 6 March 2014, which replaced a plethora of earlier guidance documents and which is regularly updated. iv) Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decision not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G). v) A decision-maker must interpret policy properly. The true interpretation of such policy, including the NPPF, is a matter of law for the court to be considered objectively on the basis of the relevant policy documents as they stand, the subjective view of the author being irrelevant (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 (“Tesco v Dundee”), Europa Oil & Gas Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 825 at [13] per Richards LJ, and TW Logistics at [14]-[15] per Lewison LJ). Where a decision-maker has misunderstood or misapplied a plan or other policy, that may found a challenge to his decision, if it is material, i.e. if his decision would or might have been different if he had properly understood and applied the guidance. However, if the misunderstanding or misapplication is immaterial – because the decision would inevitably have been the same absent the identified error(s) – then the court has a discretion not to quash the decision (Simplex GE (Holdings Limited) v Secretary of State for the Environment (1989) P&CR 306 at pages 324-7 per Purchas LJ). vi) An inspector’s decision letter cannot be subjected to the same exegesis that might be appropriate for a statute or a deed. It must be read as a whole, and in a practical, flexible and common sense way, in the knowledge that it is addressed to the parties who will be well aware of the issues and the arguments deployed at the inspector’s inquiry, so that it is not necessary to rehearse every argument but only the principal controversial issues. The reasons for an inspector’s decision must be intelligible and adequate to enable an informed observer to understand why he decided the appeal as he did, including his conclusions on the principal important controversial issues. They must not give rise to any substantial doubt that he proceeded in accordance with the law, e.g. in his understanding the relevant policies (see Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J; South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at pages 82H, 83F-G per Hoffmann LJ; and South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown). vii) Although an application under section 288 is by way of statutory appeal, it is determined on traditional judicial review grounds. viii) Because the exercise of discretion involves a series of planning judgments, in respect of which an inspector or other planning decision-maker has particular experience and expertise, “The court must be astute to ensure that such challenges are not used for what is, in truth, a rerun of the arguments on the planning merits” (Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 75 (Admin) at [6]-[8] per Sullivan J, as he then was).

Relevant National Policies

[6]The relevant national policies are set out in the NPPF, in which “sustainable development” is the key concept. There is no specific definition of “sustainable development”, but it is to be defined in terms of development which meets the needs of the present without compromising the ability of future generations to meet their own needs. That is reflected in the first words of the Ministerial Foreword to the NPPF, which state: “The purpose of planning is sustainable growth. Sustainable means ensuring that better lives for ourselves don’t mean worse lives for future generations. Development means growth. We must accommodate the new ways in which we will earn our living in a competitive world. We must house a rising population…”.[7]It is said in paragraph 6 of the NPPF that the policies set out in paragraphs 18-219, taken as a whole, constitute the Government’s view of what sustainable development means in practice for the planning system. “Sustainability” therefore inherently requires a balance to be made of the factors that favour any proposed development, and those that favour refusing it, in accordance with the relevant national and local policies. However, the NPPF provides for a number of presumptions as to where the balance might lie.[8]Paragraph 14 provides, so far as relevant to this claim:
“At the heart of the [NPPF] is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. …. For decision-taking this means [unless material considerations indicate otherwise]: ● approving development proposals that accord with the development plan without delay; and ● where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless –– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or –– specific policies in this Framework indicate development should be restricted…”
. For decision-taking this means [unless material considerations indicate otherwise]: ● approving development proposals that accord with the development plan without delay; and –– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or –– specific policies in this Framework indicate development should be restricted…”.

● approving development proposals that accord with the development plan without delay; and

[9]Paragraph 17 provides: “Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should: ● be genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out the positive vision for the future of the area. Plans should be kept up-to-date…. They should provide a practical framework within which decisions on planning applications can be made with a high degree of predictability and efficiency; … ● proactively drive and support sustainable economic development to deliver the homes, business and industrial units, infrastructure and thriving local places that the country needs. Every effort should be made objectively to identify and then meet the housing, business and other development needs of an area, and respond positively to wider opportunities for growth…”.[10]Part 6 of the NPPF deals with, “Delivering a wide choice of high quality homes”. The identification of sites for future housing provision is dealt with in paragraphs 47-49 of the NPPF, which provide as follows: “47. To boost significantly the supply of housing, local planning authorities should:• use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;• identify and update annually a supply of specific deliverable sites sufficient to provide five years’ worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;• identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;• for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target;… 48. … 49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”• use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;• identify and update annually a supply of specific deliverable sites sufficient to provide five years’ worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;• identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;• for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target;…[11]These policy provisions inform the relevant housing requirement to be used for both the strategic plan-making function of a local planning authority when (e.g.) preparing a local plan, and the function of decision-making in respect of a particular planning application when it informs the approach of the decision-maker. In the latter case, it is particularly relevant in the absence of a demonstration of a particular level of supply of deliverable housing sites. If the authority cannot demonstrate a five-year plus buffer supply of housing land at the time of a planning application for housing development, then that weighs in favour of a grant of permission. In particular, in those circumstances,(i) relevant housing policies are to be regarded as out-of-date, and hence of potentially restricted weight; and(ii) there is a presumption of granting permission unless the adverse impacts of granting permission “significantly and demonstrably” outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event.[12]Also relevant to this claim, is paragraph 111 of the NPPF:
“Planning policies and decisions should encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value. Local planning authorities may continue to consider the case for setting a locally appropriate target for the use of brownfield land.”
[13]In support of the housing supply provisions in the NPPF, the Secretary of State has published the following guidance in the PPG (paragraphs 3.30-3.33):
“3.30. What is the starting point for the five-year housing supply? The [NPPF] sets out that local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide five-years’ worth of housing against their housing requirements. Therefore local planning authorities should have an identified five-year housing supply at all points during the plan period…. 3.31. What constitutes a ‘deliverable site’ in the context of housing policy? … Local planning authorities will need to provide robust, up to date evidence to support the deliverability of sites, ensuring that their judgments on deliverability are clearly and transparently set out…. … 3.33. Updating evidence on the supply of specific deliverable sites sufficient to provide five years’ worth of housing against housing requirements Applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. Up-to-date housing requirements and the deliverability of sites to meet a five-year supply will have been thoroughly considered and examined prior to adoption, in a way that cannot be replicated in the course of determining individual applications and appeals. The [NPPF] requires local planning authorities to identify and update annually a supply of specific deliverable sites sufficient to provide five years’ worth of housing. As part of this, local planning authorities should consider both the delivery of sites against the forecast trajectory and also the deliverability of all the sites in the five-year supply. By taking a thorough approach on an annual basis, local planning authorities will be in a strong position to demonstrate a robust five-year supply of sites. Demonstration of a five-year supply is a key material consideration when determining housing allocations and appeals. As set out in the [NPPF], a five-year supply is also central to demonstrating that relevant policies for the supply of housing are up-to-date in applying the presumption in favour of sustainable development.”

Relevant Local Policies

[14]Until 2014, the relevant local development plan was Stafford Borough Local Plan 2001. The Council proposed to replace that plan with a new plan comprising two documents, namely the PSB (which would replace all saved policies from the 2001 Plan) and a complementary Site Allocations Development Plan Document (“the Site Allocations DPD”).[15]Stafford was declared a Growth Point by the Government in July 2008; and the PSB makes clear that the Council is committed to growth through new housing and employment development to be delivered, where possible, through the re-use of brownfield sites and land not of high environmental value (paragraphs 3.15-3.17, and 5.1 especially (i) and (j)).[16]The PSB sets out a Development Strategy by way of spatial principles. The borough-wide scale and distribution of new housing is set out in Policies SP2, SP4 and SP7.[17]Policy SP2 establishes the required housing provision, namely the development of 500 dwellings per year over the twenty year plan period, i.e. an aggregate of 10,000 dwellings. The policy makes clear that that figure is not a ceiling, but a minimum requirement. To achieve that scale of new housing and to ensure that growth is particularly targeted on Stafford town, Policy SP4 provides an annual target of 70% for Stafford, i.e. 7,000 new homes over the plan period. Of those, 262 had been completed by March 2013, and there were commitments for a further 1,505. That meant 5,233 had still to be found (paragraph 6.53). It was accepted that there was insufficient land within the existing town to deliver the housing provision identified; and therefore “significant levels of new housing will be required on greenfield land on the edge of Stafford town, to be delivered through [three identified] Strategic Development Areas [‘SDLs’]” to the north, east and west of the town respectively (paragraph 7.3). I pause to note that the housing requirement was “to be delivered through the [SDLs]”. The three SDLs would provide approximately 3,100 north (paragraph 7.26), 2,200 west (paragraph 7.30) and 600 east (Policy PS4(i)), i.e. 5,900 dwellings in total compared with the assessed net requirement of 5,233.[18]Section 7 of the PSB deals with “Appropriate mechanisms for achieving the distribution of development”. In general terms, new settlement boundaries are to be established in a second document, the Site Allocations DPD, which, as its name suggests, will be a development plan document and will complement the more high level, strategic PSB (paragraph 6.61-6.63). Generally, once established, development within the boundaries will be encouraged, and development outside discouraged. As to the interim position, paragraph 6.63 states:
“… Prior to the actual definition being achieved through these processes [defining the settlement boundaries], the criteria established in Spatial Principle 7 (SP7) will be used to judge the acceptability of individual development proposals.”
[19]Policy SP7 (Supporting the Location of New Development) comprises four unnumbered paragraphs, which I shall refer to as Policy SP7/1 through to Policy SP7/4. Policies SP7/1 and SP7/2 require the future establishment of boundaries for key settlements (including Stafford town), and sets up a presumption for development inside those boundaries and a reverse presumption for development outside. Policy SP7/3 states:
“Settlement boundaries will be established in accordance with the following criteria. Prior to the establishment of the actual boundaries these principles will be used to assess the acceptability of individual proposals at the Settlements.

(a) is in, or adjacent to, an existing settlement;…”

. There are then set out a further eleven criteria, (b) to (l).[20]The final paragraph, Policy SP7/4, states:
“Development proposals should maximise the use of brownfield redevelopment sites within the Borough’s towns and villages to reduce the need for greenfield sites. Only where insufficient sites on previously developed land, in sustainable locations, are available to meet new development requirements should greenfield sites be released.”
[21]In the usual way, the PSB was subject to examination by an inspector appointed by the Secretary of State, Stephen J Pratt BA Hons, MRTPI (“the PSB Inspector”) who, following submission of the PSB for examination on 20 August 2013 and examination hearings on 23 October to 1 November 2013, concluded in a report dated 11 June 2014 that, with modifications that he recommended (and which the Council in due course made), the PSB met the criteria for soundness and legal compliance in the NPPF.[22]In coming to that overall conclusion the PSB Inspector considered in paragraphs 27-60 of his report, in some considerable detail, the following question:
“Is the Development Strategy for Stafford Borough soundly based, effective, appropriate, locally distinctive and justified by robust, proportionate and credible evidence, particularly in terms of the proposed amount of housing, employment and other development. And is it positively prepared and consistent with national policy?”
[23]In respect of the NPPF policy requirements with regard to housing, the Council accepted that, because of past shortfalls, a 20% uplift on the first five-year period for housing land supply was required. Because of the timing of the examination, the housing supply land evidence base was as at 31 March 2013.[24]The PSB Inspector concluded as follows:
“39. Although [the Council] cannot currently demonstrate a 5-year supply of housing land, this will be rectified when the [PSB] is adopted, particularly with the allocation of the SDLs, as confirmed in the latest housing trajectory; regular updating of the housing trajectory and 5-year land supply will help to ensure that the [PSB] is effective…. 40. Evidence shows that the PSB’s proposed housing provision is sustainable, viable and deliverable, being largely focused at four [SDLs]. Evidence in the SHLAA [i.e. the Strategic Housing Land Availability Assessment] confirms that sufficient sites can be identified in sustainable locations. With the necessary infrastructure, in a viable and deliverable manner; many potential additional sites are identified in the main towns and Key Service Villages, both in the short and longer term. The first 5-year period will be boosted by a 20% increase in housing land supply, identifying sites for over 3,100 dwellings during this initial period…. … 45. Consequently, the Plan provides an effective and positively prepared framework to fully meet the objectively assessed housing needs of the Borough for both market and affordable housing in a sustainable, viable and deliverable manner, consistent with the latest household projections and the NPPF & PPG.”
[25]Following the PSB Inspector’s report dated 11 June 2014, the Council adopted the PSB (with the PSB Inspector’s recommended modifications) on 19 June 2014.

The Grounds of Challenge : Introduction

[26]As I have indicated, Mr Richards for the Developers relies upon three grounds of challenge, namely that the Inspector misconstrued and/or misapplied Policy SP7 of the PSB (Ground 1) and the NPPF with regard to the supply of housing land (Ground 2); and he failed to address the Developers’ submission that, in any event, the development plan was incomplete and thus the relevant policies were out-of-date so that there was a presumption in favour of grant (Ground 3).[27]I will deal with those grounds in turn.

Ground 1: Policy SP7

[28]Because the settlement boundaries had not been fixed, Policy SP7/3 (see paragraph 19 above) applied. The Inspector found that the development did not conflict with any of the criteria (a) to (l).[29]However, with regard to the final paragraph of Policy SP7 (i.e. Policy SP7/4, set out at paragraph 20 above), having quoted that paragraph, the Inspector went on to say this:
“38. This, it seems to me, is a fundamental tenet of the strategic plan for the Borough of Stafford, the PSB, recently examined and found to be sound in the context of relevant national policy expressed in the [NPPF]. That finding in itself is a material consideration of critical importance in support of the principle. 39. The principle is plainly free-standing and applies perforce to the development at issue even though settlement boundaries are not yet defined and all criteria (a) to (k) [in fact, as found by the Inspector, (a) to (l)] of Policy SP7 can, in my view, be satisfied by it. 40. In other words, the final paragraph is not simply a well-intentioned wish added in for its own sake; it is central to the success of the policy and the plan as a whole (as is clear from the intention to re-use brownfield land where possible listed under point i. in the Spatial Vision statement of the PSB). It is not, however, as was confirmed at the inquiry, a sequential approach (i.e. ‘brownfield first’). Indeed, given the early reliance on the largely greenfield [SDLs], the PSB would be internally contradictory if it was intended to be deployed in that way. Rather it is, on its face, a clear preference that is now enshrined as a policy principle of the adopted development plan and I am obliged to follow it in this case unless it is demonstrably the case that insufficient brownfield sites are available in sustainable locations to meet the plan’s development requirements. 41. Patently, the plan’s development requirements cannot be met on brownfield land alone. If that were the case, the PSB would not be promoting SDLs that are to serve a very significant proportion of the development needs of Stafford Town and the borough as a whole. However, the PSB must be taken as a whole and it makes specific provision to meet its total requirements for Stafford Town, i.e. 7,000 dwellings and 90 hectares of employment land, inter alia by identifying SDLs to the west, north and east of the town. … 47. The fact of the matter is that the insufficiency of brownfield sites in Stafford to accommodate planned requirements has been addressed through PSB itself, for the duration of the plan period at least, by the allocation of the SDLs…. …. 51. Given that the PSB provides in that sense for sufficient housing land and that the needs of Stafford Town specifically are satisfied by it, then… further greenfield land release in Stafford is not, in principle, necessary and is not therefore permitted by the terms of Policy SP7. … 53. For the above reasons I have no hesitation in concluding that the proposed development does not accord with the intentions of Policy SP7 or the development plan as a whole and that it would, moreover, harmfully conflict with and undermine those intentions.”
[30]Mr Richards submitted that: i) the Inspector misconstrued Policy 7/4: on its true construction it had no application in this case at all; and ii) if that were wrong and Policy 7/4 was applicable in this case, the Inspector misapplied it.[31]In relation to the construction point, Mr Richards submitted that Policy SP7/4 is applicable to the establishment of settlement boundaries and to decision-making on applications and appeals in respect of proposed developments within settlement boundaries once they are established. However, where paragraph 6.63 and Policy SP7/3 refers to “criteria” for the assessment of the acceptability of development proposals before the settlement boundaries are established, those are references to the criteria (a) to (l) set out in Policy SP7/3 and only those criteria. If those criteria are satisfied (as the Inspector found them to be in this case), then the proposed development will be acceptable in principle – although, of course, other material considerations including other policies may ultimately result in the planning balance being against the development.[32]If, contrary to his primary submission, Policy SP7/4 did apply to a development application or appeal before the settlement boundaries are established, Mr Richards submitted that the Inspector misapplied the policy to the facts in this case. He was required to interpret the words of Policy SP7/4 objectively, but repeatedly referred to the “intention” of the particular policy and the PSB as a whole – including in paragraph 53 of his decision letter quoted in paragraph 29 above. The words of Policy SP7/4 simply required the use of previously developed (brownfield) land to be maximised, and greenfield sites to be used only where there are insufficient brownfield sites. In this case, it was uncontroversial that brownfield sites could not meet the housing land requirement, and so no in-principle objection to the proposed development on greenfield land arose out of Policy SP7/4. Insofar as Policy SP7/4 has any application in this case, the Inspector erred in finding that there was such an objection.[33]I am unimpressed by the submission based upon the Inspector’s use of the word “intention”. Of course, “intention” might refer to the subjective intention of the author of a policy – which is irrelevant for the purposes of construing that policy – but the Inspector spoke of the intention of the words used; and, looking at his decision letter as a whole (as we must), it is clear that he did not mean the subjective intention of the author at all, but rather he used the term to mean the objective, or overall broad approach, or thrust, of the words used as derived from the words themselves seen in the context of the PSB as a whole. It is not unusual for “intention” to be used by inspectors thus (see, e.g., Crane at [43], and Morris v Secretary of State for Communities and Local Government [2009] EWHC 1656 (Admin) at [52]).[34]Nor do I find compelling the submission that the Policy SP7/4 is restricted to the plan-making and decision-making identified by Mr Richards. On its face, it 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.[35]Development plans are full of broad statements of policy which have to be read flexibly and in their proper context (see Tesco v Dundee, especially at [18]-[21] and [34]-[35]). In particular, cases such as Tesco v Dundee, TW Logistics, Hampton Bishop PC and Crane emphasise the need for decision-makers to consider whether proposed development is in line with, or in conflict with, the plan as a whole, with a focus on the relevant objectives and the policies giving effect to those objectives.[36]Whilst I understand that the Inspector found that the proposed development would be contrary to Policy SP7/4, in my view, Mr Richards is wrong to focus his submission so intently and exclusively on that specific paragraph. The Inspector did not do so. In this regard, it is noteworthy that the Inspector considered – and the parties agreed – that the relevant main issue for him to determine was: “Would the proposed development accord with the intentions of the development plan, or would it harmfully conflict with and undermine those intentions?” (see paragraphs 12 and 13 of the decision letter).[37]Looking at his decision letter as a whole, the Inspector clearly sought to identify the core strategic objectives in the plan which, in respect of housing development, he considered to be, or to include, the following:(a) to encourage and optimise the use of brownfield land and(b) to restrict the use of greenfield land to that necessary to meet the identified housing requirement, the latter being emphasised in (e.g.) paragraph 7.3 of the PSB (see paragraph 17 above). Whilst expressly acknowledging that the 10,000 housing requirement figure was not a ceiling, he considered that, excluding insignificant small increments of greenfield development that might be eventually be included in Neighbourhoods Plans or Site Allocations DPD, the PSB looked at as a whole did effectively constrain housing development on greenfield land to that necessary to meet the identified housing requirement as identified in the PSB itself, i.e. the SDLs (paragraphs 46 and 52 of his decision letter). He construed Policy SP7/4 in the light of these plan objectives, to mean that substantial greenfield development over and above that required to meet the PSB housing requirements (i.e. over and above the SDLs) would not be allowed, which would run contrary to the objectives of the PSB looked at as a whole (paragraphs 51-52). Thus his conclusion was that the proposed development did not accord with the objectives of Policy SP7/4 – or with those of the PSB looked at as a whole (paragraph 53).[38]Although each case is necessarily fact-specific, as Mr Honey submitted, this analysis is similar to that of Lindblom J in Crane. Mr Honey also submitted that identifying the thrust and objectives of a development plan requires the exercise of planning judgment, and so it is not subject to the principles of objective interpretation set out in Tesco v Dundee. In my view, that submission has force – but it is unnecessary for me to determine it in this case, because I am satisfied that, looked at objectively, the Inspector did properly identify the objectives of the PSB. Whilst Policy SP4/7 may be focused on the use of brownfield sites in preference to (any) greenfield sites, it is inherent in that policy, and the plan when looked at as a whole, that the development of greenfield sites will be minimised – or, as the Inspector put it, the policy is to discourage the “unnecessary” use of greenfield land. The scope of the necessary use of greenfield land for housing development had been identified in the PSB in the form of the SDLs, which were both necessary and sufficient to meet the identified housing requirements.[39]Having given policy priority to brownfield land and allocated three SDLs to meet the balance of the housing requirements, in my judgment, looked at objectively the PSB did not envisage any further substantial housing developments on greenfield sites. I agree with the submission of Mr Honey – as well as being contrary to the whole NPPF approach of identifying housing requirements and then allocating land in local plans to meet those requirements (see Solihull Metropolitan Borough Council v Gallagher [2014] EWCA Civ 1610 at [16] per Laws LJ), the development proposal here conflicted with the strategic objectives and thrust of the development plan including Policy SP7/4, as the Inspector found.[40]Therefore, I do not consider that, in determining whether the proposed development was acceptable in principle, the Inspector erred by not restricting himself to consideration of the criteria set out in Policy SP7/3. It is noteworthy that Policy SP7/3 and the supporting paragraph 6.63 do not say that, prior to the establishment of settlement boundaries, where a development proposal satisfies the identified criteria it will be acceptable in principle – but merely that the criteria should be treated as principles “to assess the acceptability of individual proposals”. Whilst those criteria formed a useful framework, they were not exclusively determinate. The Inspector was entitled – and, indeed, bound – to consider whether the proposal was in conflict with the PSB looked at as a whole, with particular reference to its strategic objectives. That is what he did. He did not err in law, either in his construction or his application of Policy SP7, or indeed in his general approach.[41]Ground 1 consequently fails.

Ground 2: The Housing Land Supply

[42]Mr Richards submitted that, in concluding that the Council had shown a five-year housing land supply, the Inspector erred in his interpretation of the NPPF and the PPG. That policy and guidance require the decision-maker to be satisfied that the five-year supply criterion is met as at the date of the decision. In this case, the Inspector attached considerable weight to the conclusion of the PSB Inspector that the Council would be able to demonstrate a five-year housing land supply once the PSB was adopted. However, that conclusion was based upon a 31 March 2013 evidence base. By the time of the Inspector’s decision, in line with the requirement of paragraph 47 of the NPPF for annual updating, figures for 31 March 2014 had been published on 9 June 2014. The Inspector failed to grapple with the issue of whether there was a five-year housing land supply at the date of his decision.[43]However, again, the Inspector’s decision letter must be looked at as a whole. When it is, there is in my judgment no force in this submission. In coming to that conclusion, I have particularly taken into account the following parts of the decision letter. i) There can be no doubt that the Inspector understood that adequacy of housing supply was a main issue before him (see paragraph 12, where it is expressly described as such), and understood the scheme of the NPPF and PPG in this regard, including “the important consideration of whether or not the [Council] can demonstrate a five-year supply of deliverable housing sites” (paragraph 59 of his decision letter). He clearly understood the evidential strength of an adopted development plan in respect of the deliverability of sites to meet a five-year supply, because of the thorough consideration and examination of that issue prior to adoption; but also the need to demonstrate a five-year supply as a key material consideration when determining housing applications and appeals (paragraphs 61-62, quoting the relevant passages from paragraphs 3.30-3.33 of the PPG). ii) He was right to observe that housing land availability involved “informed judgments about the prospects for a multiplicity of sites and that judgmental factor can be very significant in situations where, as here, reliance is placed on a small number of large allocations [i.e. the SDLs]” (paragraph 63). iii) Although the PSB Inspector did not have the 31 March 2014 evidence base – it did not become available until two days before the publication of his report – he considered housing supply following an examination of the PSB including evidence from a wide variety of sources. His conclusion – that, upon the adoption of the PSB, the Council would have a robust five-year supply of deliverable housing sites – was clearly a material factor that the Inspector was entitled to take into account, particularly as that conclusion was drawn (albeit on the basis of the 2013 evidence base) only days before the adoption of the PSB by the Council. The weight to be given to that material consideration was, of course, a matter for the Inspector; but, given its contemporaneity, its thorough consideration and examination of a wide evidential base, and paragraph 3.33 of the PPG, the Inspector was entitled to give it considerable weight. He did give is such weight: he considered that he should not take a different view from the PSB Inspector unless there was “truly compelling evidence to the contrary”. In the event, the Inspector tested the PSB Inspector’s conclusion, but found no compelling evidence that persuaded him that that conclusion was not still valid. iv) Whilst the Inspector did, rightly, consider the conclusions of both the PSB Inspector and an inspector who had determined another section 78 appeal (in respect of a site at Cold Meece) – both to the effect that the Council could show a five-year housing land supply – it is simply not arguable that he did not consider whether there was such a supply at the time of his own decision. There are a number of references to the “current” position with regard to housing land supply, but the most stark is that at paragraph 82 of the decision letter:
“That said, it is necessary for the purposes of this appeal to form a view as to the current situation, and the Council’s statement of five year land supply as at 31 March 2014 seems to me to be an appropriate starting point…”
. That could not be clearer. v) The Council’s 2014 statement assessed the housing land supply at 5.3 years. The Inspector considered the parameters upon which that estimate was based in some substantial detail (paragraphs 83-98). He considered, in particular, the likely performance of the SDLs was a crucial factor. Despite the reservations of some (including, apparently, the Council itself), the Inspector ultimately concluded that, whilst there was not a comfortable surplus and little room for complacency, the Council had demonstrated a five-year housing land supply at the time of his decision (paragraph 97).[44]It seems from the decision letter that the Inspector did not find this issue an easy one to judge; but, in my view, he did not arguably err in law in his analysis or his conclusion. In particular, there is no force in the submission that the Inspector in some way failed to address the issue of land supply as at the date of his decision. He clearly and expressly did so.[45]For those reasons, there is no force in this ground.

Ground 3: Adequate Reasons

[46]Mr Richards submitted that the Inspector failed to address a significant part of the Claimant’s case before him; or, if he did, he failed to give reasons for rejecting it. If (as the Inspector found) the Council was able to demonstrate a five-year housing land supply, the Claimant contended that the second bullet point of paragraph 14 of the NPPF was nevertheless engaged because, in respect of the supply of housing, in the absence of an adopted Site Allocations SPD, “the relevant policies are out-of-date”. Thus, the Inspector ought to have operated on the basis of a presumption for, rather than against, development; and erred in law in adopting the presumption that he did.[47]However, the Inspector was well aware that the Site Allocations SPD had not yet been adopted (see paragraph 19 of his decision letter), and that the development plan was therefore not complete (paragraph 78 and 98). But, he said, although the PSB was “but one part of the eventual completed development plan [that] does not diminish its importance or relevance” (paragraph 45). Although it was to be supplemented in due course by a Site Allocations SPD, the relevant housing supply policies were to be found in the PSB. As a matter of fact, the development plan was not silent on the issue of housing supply; nor did Mr Richards (before the Inspector or me) suggest otherwise. Nor were the policies as a matter of fact out-of-date (see Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at [45] per Lindblom J, and Woodcock Holdings Limited v Secretary of State for Communities and Local Government [2015] EWHC 1173 (Admin) at [103] per Holgate J). The PSB had only just been adopted, and there was no argument or even suggestion by the Claimant that that was out-of-date, nor could there have been. A policy is not “out-of-date” simply because in the future it will, or might be, supplemented in a further development plan document. If it were, given the living nature of planning policies and plans, the plan-led nature of the planning system would be severely undermined.[48]In this case, the relevant housing supply policies were set out in the PSB. They were not arguably out-of-date – and the presumption was therefore against planning permission.[49]Therefore, this ground too fails.

Conclusion

[50]For those reasons, none of the grounds relied upon are made good; and I refuse this application.