Shropshire Council statement re Foldgate Lane, Ludlow planning appeal

On 10 November 2016 an inspector acting on behalf of the Secretary of State granted planning permission for a residential development of 137 dwellings on land at Foldgate Lane, Ludlow.

Shropshire Council considers that the inspector erred in concluding that the proposals were in accordance with the development plan. He failed to address or give any reasons for rejecting the Local Planning Authority’s principal argument (which the appellant ultimately conceded was correct) that the proposals were contrary to the development plan because of the site’s location in the open countryside outside the development boundary for Ludlow.

The inspector also failed to have regard to, or give reasons for rejecting, similar conclusions by inspectors in other cases. He also failed to consider provisions of the development plan which were relevant to this issue and which were relied upon by the local planning authority (and accepted as being relevant by the appellant).

As a result, it is Shropshire Council’s view that the inspector failed to comply with his statutory duties to have regard to all relevant provisions of the plan, and to determine the appeal in accordance with the plan unless material considerations indicate otherwise.

It is also considered that the inspector wrongly interpreted National Planning Policy Framework paragraph 47 as requiring him to treat the supply of any extra housing as a significant benefit weighing in favour of the grant of permission, even though he agreed that the council could demonstrate a five-year supply of housing land sufficient to meet local needs.

Furthermore, the notion that the provision of extra (unnecessary) housing in one area is of benefit on a national level is considered to be fundamentally misconceived.

Notwithstanding this, Shropshire Council is mindful that any High Court action brings with it significant risks, as only a small number of this type of claims are successful. It is also important to note that a High Court Challenge does not re-visit the merits of an appeal decision: it is not in this sense a further “appeal” to a higher authority. The High Court process would examine whether the approach taken by the planning inspector was legally flawed; a High Court judge then has the power to quash the decision. In such cases the appeal would remain undetermined and be returned to the Planning Inspectorate to be reconsidered. The Court is not obliged to quash a decision even if it finds it is legally flawed, if it nevertheless finds the decision would still have been the same.

Shropshire Council has written to the Planning Inspectorate to set out the clear errors in this decision. The council has also considered with great care the implications of bringing a formal challenge under s288 of the Town & Country Planning Act.

The decision to challenge is not a straightforward matter based solely on the flaws of the inspector’s decision. It also has regard to the potential consequences that flow from such action and a number of potential outcomes that could create further uncertainty for the Ludlow community, which is not considered desirable.

One of the key considerations in reaching this view is that in early 2017 there will be a call for sites as part of the Local Plan Review for the next plan period 2016-2036. It is highly likely that if the Foldgate Lane decision was quashed following a formal challenge by the council and then dismissed at appeal, that it would be put forward again for consideration as part of that process.

The next plan review will continue to focus new housing growth on Shropshire’s market towns, including Ludlow. In this respect Ludlow would already have made significant contributions having regard to the existing plan allocations and permissions granted at appeal including Rocks Green, Bromfield Road and Foldgate Lane.

Taking all of these issues into account, Shropshire Council has decided not to formally challenge this decision even though there are clear flaws with it.

Understandably there is a question as to the potential precedent that the Foldgate Lane decision might set for other sites outside the development plan. Again this is an issue that has been considered carefully and the council’s view is that the decision letter cannot be relied on to support similar sites for two reasons.

Firstly, there are the clear flaws in the inspector’s reasoning set out above.

Secondly, since the Foldgate Lane decision the council has received a number of other appeal decisions for housing sites not compliant with the council’s development plan.

These more recent decisions are properly made in accordance with planning law and policy and support the council’s development plan and interpretation of its policies.

Therefore, while the Foldgate Lane decision is clearly a disappointing outcome for Ludlow communities and Shropshire Council, it is not considered that it will set a precedent.