The Council granted planning permission in reliance on the site’s draft allocation for development in the emerging Babergh and Mid Suffolk Joint Local Plan.  At the time of the Council’s consideration the draft plan was only at reg. 18 stage.  It is now about to be submitted to the Secretary of State for examination.  The draft allocation in the plan is the subject of substantial objections by the Parish Council and others on grounds of being outside the recently established settlement boundary for Thurston (and as to Thurston’s lack of capacity to accommodate any more large scale development).

The Parish Council’s grounds of challenge are that: 
(1) Council members were wrongly advised by officers on the relative weight to be accorded to the Neighbourhood Development Plan by stating
(a)    that there was a “conflict” with or “tension” between the Neighbourhood Development Plan and the Reg. 18 “consultation” version of the emerging Local Plan (which was subject to numerous objections) – when they should have been advised that the application proposals were directly in conflict with the statutory Neighbourhood Development Plan as being outside the settlement boundary established in it; 
(b)    in subsequent oral advice to committee, that the application proposals were not in fact in conflict with the Neighbourhood Development Plan at all.

(2) Officers’ advice on the stated engagement of the “tilted balance” in para. 11 of the NPPF was simply wrong in that the tilted balance only applies “where there are no relevant development plan policies, or the policies which are most important for determining the application are out of date”, see para. 11(d).  Here, even though certain polices in the adopted old Local Plan might be out of date, the “Spatial Strategy” policy and settlement boundary in the new Neighbourhood Plan was manifestly wholly up to date.

(3) The consequence of the Council’s grant of planning permission is to prejudice the as yet unconcluded Joint Local Plan making process in that the grant of permission now would (a) prejudice the ability of the examining Inspector to assess the appropriate capacity of Thurston to accommodate development (b) prejudge the question of the appropriate location for any such development and (c) in any event, unlawfully undermine the statutory force of the recently made Neighbourhood Plan.

The Parish Council also complains that members were wrongly influenced by repeated warnings about the “risks” of refusing permission, as disapproved by Underhill LJ in R (East Bergholt PC) v. Babergh DC [2019] EWCA Civ 2200 at [87].

They also rely on the recent grant of permission to apply for JR by Lieven J on another claim brought against the Council by Charles Merrett of FTB in R (Ewans) v. Mid Suffolk DC CO/3569/2020 on the strikingly similar ground to Ground 1 above that “Having correctly identified that only limited weight should be given to the JLP, the Report then fails to give limited weight to it. It instead improperly places weight on the direction of travel of the JLP, the IDP and the stated intention of the Council to allocate the Site in direct contrast with the purported limited weight to be given to the JLP”.

Meyric Lewis is representing Thurston Parish Council instructed by Bob McGeady of Ashtons Legal