Neutral Citation Number: [2016] EWCA Civ 493 Case No: C1/2015/1428 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT PLANNING COURT MR JUSTICE HICKINBOTTOM [2015] EWHC 886 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Date: 27 May 2016 Before: The Master of the Rolls Lady Justice Macur and Lord Justice Lindblom - - - - - - - - - - - - - - - - - - - - - Between: Secretary of State for Communities and Local Government Appellant - and - BDW Trading Ltd. (T/A David Wilson Homes (Central, Mercia and West Midlands)) Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Richard Kimblin Q.C. (instructed by the Government Legal Department) for the Appellant Mr Hugh Richards (instructed by Gateley Plc) for the Respondent Hearing date: 12 April 2016 - - - - - - - - - - - - - - - - - - - - - Judgment Approved by the court for handing down Judgment Approved by the court for handing down Lord Justice Lindblom: Introduction 1. In this appeal we have to consider whether an inspector deciding an appeal against a refusal of planning permission failed to discharge the duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to make the decision in accordance with the development plan unless material considerations indicated otherwise. This is not the first occasion on which the section 38(6) duty has been the focus of an appeal to this court. 2. The appellant, the Secretary of State for Communities and Local Government, appeals against the order of Hickinbottom J., dated 13 April 2015, by which he allowed the application of the respondent, BDW Trading Ltd. (trading as David Wilson Homes (Central, Mercia and West Midlands)), challenging the decision of the Secretary of State’s inspector to dismiss its appeal against Stafford Borough Council’s refusal of planning permission for housing development – 114 dwellings – on land at Spode Close in Stone, Staffordshire. The site is about five hectares of farmland on the south-western edge of the town, with housing to its north and east, and is not allocated for development in the development plan. The inspector, Ms Victoria Lucas-Gosnold, held a hearing into BDW’s appeal on 23 September 2014. Her decision letter is dated 24 October 2014. BDW’s challenge was brought under section 288 of the Town and Country Planning Act 1990. The issues in the appeal 3. The judge accepted the contention in ground 1 of BDW’s application that the inspector had failed to ascertain, under section 38(6), whether or not the proposal was in accordance with the development plan. He also saw force in ground 4 of the application, which asserted that the inspector had erred in finding that BDW might not be able to create a suitable emergency access to the site. But he did not decide whether this, in itself, was a material error. Those two conclusions of the judge are in contest before us. His conclusion on the section 38(6) issue is the subject of grounds 1 to 5 in this appeal, his conclusion on the issue about emergency access the subject of ground 6, and also BDW’s respondent’s notice. The council’s decision to refuse planning permission 4. In its decision notice of 24 March 2014 the council gave a single reason for refusal: “The amount of additional traffic generated by the proposed development, together with the constrained ability to disperse additional vehicles in the surrounding residential area would result in unacceptable levels of noise and disturbance that would have a significantly harmful effect on the living conditions of the neighbouring residents. This would be contrary to Saved Policies E&D1(iv), E&D5 and HOU1(iii) of the Stafford Borough Local Plan 2001, Spatial Principle 7(l) of the emerging Plan for Stafford Borough and Paragraph 17 of the National Planning Policy Framework [“the NPPF”].” Judgment Approved by the court for handing down The parties’ statement of common ground and their evidence before the inspector 5. In its appeal against the council’s decision BDW agreed with the council a statement of common ground, the final version dated July 2014. In section 4, “Relevant Policies”, the statement of common ground referred to the requirement in section 38(6) of the 2004 Act for “planning decisions to be made in accordance with the Development Plan, unless material considerations indicate otherwise” (the first paragraph 4.1.1). It acknowledged that “The Plan for Stafford Borough Development Plan Document” had been adopted as the council’s local plan on 19 June 2014, replacing the saved policies of the 2001 local plan (paragraph 4.1.7). It listed a number of policies of the newly adopted local plan that were agreed by the parties to be “relevant to this appeal proposal”, including Spatial Principle 7 (the second paragraph 4.1.1). It recorded the fact that the Stone Area Inset Map showed the appeal site as “white land”, without notation or allocation (the second paragraph 4.1.2 and paragraph 5.4.1). 6. Spatial Principle 7, “Supporting the location of new development”, says that “Settlement Boundaries” will be established in accordance with the criteria it sets out, and that “[prior] to the establishment of the actual boundaries these principles will be used to assess the acceptability of individual proposals at the Settlements”. The relevant principle here is in criterion (l), which requires that development “will not adversely affect the residential amenity of the locality”. At the time of BDW’s appeal no settlement boundary had yet been defined for Stone under Spatial Principle 7. 7. Under the heading “The Principle of Residential Development”, paragraph 5.5.1 of the statement of common ground said this: “The parties agree that the principle of residential development in this location is acceptable subject to the proposal satisfying other Development Plan policies.” 8. In section 6, “Areas of Disagreement”, the parties set out the two issues on which they were divided (paragraph 6.1.1). The first was this: “Whether the additional traffic generated by the proposed development would result in unacceptable levels of noise and disturbance that would have a significantly harmful effect on the living conditions of neighbouring residents.” The second issue was “[whether] the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits when assessed against the policies in [the NPPF] taken as a whole”. As was agreed at the hearing before the inspector, that issue fell away, because the new local plan had by then been adopted and its relevant policies were not “out-of-date” for the purposes of the policy in paragraph 14 of the NPPF. 9. BDW’s full statement of case, prepared by Wardell Armstrong, referred to a number of policies in the 2014 local plan as being “relevant” to the proposal (paragraph 4.3.3.), including the “Spatial Vision” for Stone, several of the spatial principles, and “Policy Stone 1 – Stone Town”. It quoted the “strategy” for Stone in that policy, including, under the heading “Housing”, the “aim to [continue] to meet the housing requirements for Stone Town by providing a total of 1,000 new market and affordable homes …” Judgment Approved by the court for handing down (paragraph 4.3.10). It pointed out that the “strategy for Stone is based on delivering an increased mix of high quality residential developments supporting first class business development” (paragraph 4.4.4). It emphasized that the inspector’s report on the draft local plan had said that “the scale of proposed housing as put forward in the plan is not intended as a maximum figure” (paragraphs 4.4.7 and 4.4.11). It amplified this point (in paragraph 4.4.13): “… One of the benefits of the appeal scheme is in its role in contributing to providing sustainable development in a town with a strong housing market. In addition, the scheme will provide affordable housing where a need has been identified. It is also noted that no policy in the newly adopted Local Plan indicates that additional housing growth in Stone town even above the level identified in the Plan for Stafford [Borough] would have any unaccepted [disbenefits]. To the contrary, housing growth of Stone town is a fundamental sustainable element of the spatial strategy of the adopted Local Plan.” Although there was more than a five-year supply of housing land (5.09 years’ supply), the NPPF did not suggest that this should be seen as an upper limit for housing development in a local planning authority’s area (paragraph 4.4.15). The “Conclusion”, stated in a single paragraph (paragraph 5.6.3), was this: “Overall the scheme will not detract from the amenity of the area. The scheme will not generate an unacceptable level of noise. The scheme will not result in undue delay on local roads within the area or restrict access to neighbouring properties. The proposal is consistent with the Plan for Stafford Borough Policy Spatial Principle 7(l) and Paragraph 17 of the NPPF.” 10. In section 4 of its full statement of case the council set out its case in opposition to BDW’s appeal. It said that, subject to the completion of an appropriate section 106 agreement, it was “satisfied that the proposals broadly comply with the relevant Development Plan policies and the provisions of the NPPF with the exception of Spatial Principle 7(l) [of the 2014 local plan] and paragraph 17 of the NPPF” (paragraph 4.1). The relevant criterion of the acceptability of development in Spatial Principle 7 was criterion (l). Of the “core planning principles” in paragraph 17 of the NPPF the relevant one was the fourth, that development should “always seek to secure high quality design and a good standard of amenity for all existing and future occupants of land and buildings” (paragraph 4.5).