Sustainable development and planning policy: another case on which takes precedence

William Rose, Sharpe Pritchard

Sharpe Pritchard senior associate William Rose and trainee solicitor Emily Knowles explain the latest in a series of cases about the presumption of sustainable development in planning law.

Background

East Staffordshire Council refused permission for 150 houses and associated development at Burton-on-Trent. An inspector allowed an appeal against that decision, and granted permission. It was common ground that the development was inconsistent with the local plan and strategic policies, but the inspector considered that he was entitled to apply a broad presumption in favour of sustainable development, outside paragraph 14 of the National Planning Policy Framework (NPPF). In the High Court, Mr Justice Green found that the Inspector had misdirected himself in three ways:

  • applying the sustainable development presumption incorrectly
  • failing to balance the pros and cons of the development
  • incorrectly finding that the proposal amounted to sustainable development.

The relevant law

Under s38(6) Planning and Compulsory Purchase Act 2004 and s70(2) Town and Country Planning Act 1990, planning applications should be determined in accordance with the development plan unless other material considerations indicate otherwise. Under paragraph 12 of the NPPF, proposals that are consistent with an up to date local plan should be approved, whilst those that conflict with it should be refused unless other material considerations indicate otherwise. Paragraph 14 NPPF says that the presumption in favour of sustainable development is “a golden thread” running though plan-making and decision-taking, and that developments that accord with the development plan should be approved without delay.

The decision

Analysis of paragraph 14 NPPF

The Inspector acknowledged that the proposed development conflicted with strategic policies and decided that the advice in paragraph 14 (to grant permission if a proposal accords with the development plan) did not apply. He found that the presumption of sustainable development was a material consideration and the starting point for his analysis. The judge disagreed and held that, where a proposal conflicts with the local plan, and so falls to be refused under paragraph 14, the decision-maker should start from the position that the proposal conflicts with paragraph 14, is not consistent with the presumption of sustainable development and should therefore be refused. As a result he held that the Inspector had materially misdirected himself as to the test to be applied.

Relying on Cheshire East BC v (1) Secretary of State for Communities & Local Government (2) Renew Land Developments Ltd (2016), the judge acknowledged that the NPPF is not the only material consideration and that there is scope for discretion where paragraph 14 suggests that a proposal should be refused. However, the outcome arrived at by the application of paragraph 14 should carry considerable gravitational pull and should yield only exceptionally where there are objective and substantial reasons as to why the development should still be permitted. He held that this followed from 1) the need for predictability, efficiency and transparency in planning decisions; 2) the need for decisions to be taken consistently with the local plan, given that it is a document that has been widely consulted on; and 3) the phrases “golden thread” and “means” in paragraph 14 indicate that the test under paragraph 14 covers the overwhelming majority of cases.

The balancing exercise

The inspector decided that the social, economic and environmental benefits of the proposal were significant and outweighed the limited harm caused and the proposal would represent sustainable development. But the judge decided that the inspector had not conducted a proper balancing exercise. He said that if a decision maker wants to approve a proposal which is not consistent with the local plan, the reasons must be clearly set out in the decision and the decision maker must address the weight put on those reasons. In this case, the relevant policy in the strategic plan stated that developments outside settlement boundaries should not be permitted unless they fell within one of nine exceptions listed in the policy. Those exceptions identify possible benefits of an otherwise inconsistent development. But the inspector had not explained how or why the failure of the proposed development to bring about any of the benefits is to be ignored or overridden.

Concept of ‘sustainable development’

The judge also decided that the Inspector was wrong to find that the proposal was ‘sustainable development’ in terms of the NPPF, because he had not explained how that could be the case given that it was inconsistent with policies and the local plan. The judge decided that in principle it is open to a decision maker to approve a proposal which is not, technically speaking, ‘sustainable’ within the meaning of paragraph 14, but he was not clear how such a development was to be categorised.

Implications

The judge agreed to grant permission to appeal to the Court of Appeal because of the importance of the decision and the existence of conflicting case law. The case is likely to be heard in Spring 2017. Importantly, the case of Cheshire, on which the judge relied, has been granted permission to appeal to the Supreme Court.

Sharpe Pritchard acted for East Staffordshire Borough Council on this case and also acts for Cheshire East Borough Council in the other case mentioned. William Rose and Trevor Griffiths regularly act on planning law cases in the higher courts, including many judicial reviews.

The transcript of the judgment in the case of East Staffordshire Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 2973 (Admin) can be found here.


This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.

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