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Osborne Clarke advises Welbeck Strategic Land on successful Planning Court decision


Written on 7 February 2019

Osborne Clarke advised Welbeck Strategic Land LLP in successfully defending a legal challenge by South Gloucestershire Council (the Council)  against an appeal decision, following a six day inquiry,  for a residential development of 350 dwellings, a 70 unit elderly care facility and community and commercial facilities. South Gloucestershire Council v Secretary of State for Housing, Communities and Local Government and Welbeck Strategic Land LLP.  [2019] EWHC 181 (Admin)

The Council was granted leave by Holgate J to bring the Court proceedings on one ground, namely, the Inspector’s reasons regarding prematurity. The Council argued these reasons were inadequate because he did not explain why he gave “little weight” to the Council’s submissions on prematurity, nor did he address the guidance regarding prematurity in the Planning Practice Guidance (PPG).

The Court (Lang J) subsequently held that prematurity was not a main issue at the inquiry, noting it was not relied upon by the Council in its reasons for refusal given in March 2017. In addition, the Court noted the issue of prematurity had been raised by the Council at the inquiry on the basis that, with the passage of time since the application was refused, the emerging Joint Structure Plan (JSP), against which the prematurity argument was made, had now reached an advanced stage. However, the Court held the identification of the site as suitable for housing pre-dated the JSP and was not an attempt to leap-frog it.

The Court held that the Inspector was clearly summarising the points made by Welbeck’s planning consultant during the inquiry as his reasons for giving “little weight” to the Council’s submissions on prematurity. It was not necessary for the Inspector to recite the PPG in his decision. The Court distinguished the decision in Woodcock Holdings Ltd v SSCLG [2015] JPL 1151, as prematurity was a main issue in that case.

In addition, the parties were well aware of the competing submissions about prematurity and the application of the PPG during the inquiry. There was not any real, as opposed to forensic, doubt as to what the Inspector’s reasons were. On the issue of prejudice to the Council in determining future applications, the Court held the Inspector’s reasons were specific to the application. It would be open to the Council to seek to distinguish this appeal decision from other appeals and applications concerning different proposals at other sites. It would also be open to the Council to submit the Inspector’s approach to the PPG in this instance should not be followed in other cases.

The challenge to the adequacy of reasons therefore failed.

John Baird, Head of Planning at Osborne Clarke, said “The issue of the adequacy of reasons in planning decisions has long been a fruitful ground of judicial challenge.  This decision shows the Court will take a pragmatic approach in dealing with such challenges, especially when the issue in question was not a main issue for the decision maker”.

Alistair Watson, Senior Partner at Welbeck, said “I am delighted that, assuming the Council accepts the Court’s decision, we have, at last, and two and a half years after submitting our planning application, secured planning permission for 350 new homes of which 35% will be affordable. The only disappointment is the time it has taken to secure this permission, and, bearing in mind our original application was supported by the Council’s planning officers, I hope lessons can be learnt to avoid this situation recurring, particularly when the country is suffering from such a severe housing shortage. I now look forward to working with the Council’s planning officers to convert this permission into a sustainable location for people to live, and which enhances the community of Thornbury.”

John Baird and Anna Harlow of Osborne Clarke instructed Mark Lowe QC and Jack Parker of Cornerstone Barristers.

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