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'Presumption in Favour of Sustainable Development' - How Far Does the 'Golden Thread' Run?

on Monday, 17 July 2017.

Does the 'presumption in favour of sustainable development' run throughout the National Planning Policy Framework (NPPF), to the extent that it can never fully be discounted in planning decision-taking?

This was the question put to the Court of Appeal and addressed in the decision in the case of Barwood Strategic Land II LLP v East Staffordshire Borough Council.

Why Is the 'Presumption in Favour of Sustainable Development' Important?

There is an often awkward interaction between planning law and policy. In recent months the courts have had opportunity to consider the NPPF and its 'presumption in favour of sustainable development' (running as a 'golden thread' throughout plan-making and decision-taking), and how it sits alongside the legal framework.

Section 70(2) of the Town and Country Planning Act 1990 (TCPA) requires local authorities to have regard to the provisions of their development plan, so far as it is material to the application, and to any 'other material considerations' which includes the NPPF. In addition Section 38(6) of the Planning and Compulsory Purchase Act 2004 (PCPA) lays down a statutory presumption in favour of the development plan, but again this needs to be weighed alongside other material considerations.

In the Barwood case the Court of Appeal was ultimately tasked with determining the scope of paragraph 14 of the NPPF. In regard to decision-taking, this paragraph provides that:

  • development proposals should be approved where they accord with the development plan

  • if there is no development plan, or if it is silent or the relevant policies are out-of-date, permission should be granted (unless adverse impacts of doing so outweigh the benefits when assessed against the NPPF policies as a whole, or if there are specific NPPF policies restricting the type of development). The 'presumption in favour of sustainable development', as laid out in paragraph 14, is therefore of crucial importance when determining planning applications when the local development plan cannot be relied on. It is also indirectly supported by statute, being part of the NPPF which is itself a material consideration in ALL planning applications further to Section 70(2) TCPA and Section 38(6) PCPA.

Facts of the Case

The appellant, Barwood Strategic Land II LLP, appealed against the High Court's decision which allowed East Staffordshire Borough Council's application for an order to quash the planning inspector's decision to grant outline permission for up to 159 dwellings on the edge of Burton-upon-Trent.

The inspector found that the application was in conflict with the up-to-date development plan, and so the 'presumption in favour of sustainable development' did not apply. The High Court agreed with the Council, that the inspector had erred in law. However, acknowledging contradictory High Court judgments on the issue permission was granted to appeal to the Court of Appeal.

The Scope of the Presumption

The planning inspector considered the 'presumption in favour of sustainable development' to run through the whole of the NPPF, meaning it was not constrained by the scenarios set out in paragraph 14. Therefore, in the inspector's view, even though Barwood's application was in conflict with the development plan (so as not to trigger the paragraph 14 use of the presumption) it was outweighed by other material considerations which included a general 'presumption in favour of sustainable development' within the NPPF.

The Court of Appeal found that the inspector had erred in law. He was incorrect in considering that a proposal which did not gain the benefit of the 'presumption in favour of sustainable development' under the policy triggers in paragraph 14 could still acquire the benefit from elsewhere in the NPPF. The presumption as a 'golden thread' running through plan-making and decision-taking was by express reference to the triggers in paragraph 14, not the NPPF as a whole.

The inspector's error had played a significant part in his decision on the merits of the application, so Barwell's appeal was dismissed.

What Does this Judgment Mean in Light of the Richborough Estates Case?

This Court of Appeal case, along with the recent Supreme Court judgment in the joined cases of Suffolk Coastal District Council v Hopkins Developments Ltd and Richborough Estates Partnership LLP v Cheshire East Borough Council, indicates that the courts are favouring a narrow interpretation of the NPPF.

The Supreme Court, in Richborough Estates, considered paragraph 49 of the NPPF which says that "relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites". This was important as if a broad interpretation had been adopted, more policies that might impact upon housing (such as green belt policy) could be cast aside in the absence of a five year housing supply.

In Richborough Estates the Supreme Court overturned the lower court's ruling. It saw the interpretation as a straightforward one, meaning only those policies by which acceptable housing sites are identified should be caught by paragraph 49. The key question in such cases is instead whether there is a five year housing supply - if not, paragraph 14 is triggered.

The Barwood appeal stems conveniently from the Supreme Court's judgment in Richborough Estates. It reiterates that the NPPF is a policy document and its wording should be considered in a literal, narrow sense.

Local authority planners should take solace from the words of LJ Lindblom who said, in giving the lead judgment:

"I would, however, stress the need for the court to adopt, if it can, a simple approach to cases such as this. Excessive legalism has no place in the planning system…The court should always resist over-complication of concepts that are basically simple".

For further information, please contact Thomas Ewings in our Property Litigation team on 0117 314 5387.

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