Partner Karen Jones, head of our leading Planning & Environmental law team, reviews the important ruling which provides welcome clarification on the scope of the presumption in favour of sustainable development.
Introduction
The decision in Court of Appeal case of Barwood Strategic Land II LLP v East Staffordshire Borough Council provides welcome confirmation and clarification, particularly in light of recent contradictory High Court Decisions, on the scope of the presumption in favour of sustainable development within the National Planning Policy Framework (“NPPF”).
Paragraph 14 of the NPPF provides for a presumption in favour of sustainable development in instances where either the development proposal accords with the development plan, or the development plan is absent, silent or the relevant policies are out-of-date.
Facts
In the Barwood case, the appellant had applied for planning permission for a development for up to 150 new dwellings in Burton upon Trent. Their proposal was refused by East Staffordshire Borough Council in July 2015. On appeal, a planning inspector allowed Barwood’s application despite the LPA being able to demonstrate an up-to-date local plan and five year housing land supply which had been adopted in the months following the original decision.
The Inspector had considered that even though Barwood’s proposed development did not completely accord with the LPA’s development plan, it should nevertheless be approved because its deficiencies were outweighed by a general presumption in favour of sustainable development within the NPPF.
The LPA subsequently challenged the Inspector’s decision in High Court, and the Court held that the Inspector had erred in law, and the grant of the planning permission was quashed. However, the Court, based on two recent conflicting High Court decisions on when the presumption applies, granted permission to appeal the case to the Court of Appeal.
Conflicting Case Law on Paragraph 14 of the NPPF
Wychavon District Council v Secretary of State for Communities and Local Government and another [2016] EWHC 592 (Admin)
- The Court held that where there was a conflict between a proposed development, and a development plan, it may still be approved by virtue of an overarching presumption in favour of sustainable development within the NPPF, and should therefore be considered an important material consideration to be weighed against the priority of the development plan.
Cheshire East Borough Council v Secretary of State for Communities and Local Government and another [2016] EWHC 571 (Admin)
- Conflicting with the decision in the Wychavon case, coincidentally given on the same day, the Court determined that the presumption in favour of sustainable development was confined to operating within paragraph 14 of the NPPF.
Court of Appeal
The main issue to be determined by the Court of Appeal was “what is the scope of the presumption in favour of sustainable development in the NPPF”, and secondly whether or not the inspector had misdirected himself, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to determine the application in accordance with the development plan unless material considerations indicated otherwise.
Disagreeing with the view expressed by Coulson J. in Wychavon, the Court preferred the approach taken in Cheshire and held that the presumption in favour of sustainable development was confined only to paragraph 14, not the NPPF as a whole. The NPPF does not, therefore, contain a general presumption in favour of sustainable development which could be applied should the requirements of paragraph 14 not be triggered.
The Court of Appeal confirmed that the presumption in favour of sustainable development, unlike the section 38(6) presumption, is not a statutory presumption, and rather one of planning policy which requires the exercise of planning judgment by a decision-maker.
Upholding the High Court’s decision, the Court of Appeal found that the Inspector’s decision represented a misinterpretation and unlawful application of NPPF policy, which had resulted from the Inspector’s misconception, following the judgment in Wychavon, that a proposal which does not gain the presumption in favour of sustainable development under the policy in paragraph 14, can nevertheless acquire it elsewhere in the NPPF.
What does this decision mean?
This is an important ruling which provides welcome clarification on the scope of the presumption in favour of sustainable development, and would appear to suggest that the Courts are favouring a more narrow interpretation of the NPPF.
For LPA’s in particular, the ruling highlights the need to ensure development plans are up-to-date to avoid triggering the presumption in favour of sustainable development contained in paragraph 14.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
