Free-standing sustainable development assessment a mistake

In Reigate and Banstead Borough Council v Secretary of State for Communities and Local Government [2017] EWHC 1562 (Admin); [2017] PLSCS 141, Lang J quashed permission granted on appeal for development on greenfield land intended for release in the development plan only if needed to boost housing land supply (HLS). The recently adopted local plan provided for almost a five-year HLS, constrained so as to be unable to meet full objectively assessed need (OAN). Despite its “urban area first” strategy, the inspector worked on the basis that sustainable development should be approved in the absence of harm. He found that there was no basis for dismissing it because the proposal would reduce the HLS shortfall against OAN over the plan period and would not significantly prejudice the spatial strategy given its scale (45 homes). The authority challenged the decision on the basis that the inspector had inverted the statutory requirement to determine the appeal in accordance with the development plan, subject to material considerations otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004). The judgment identifies 10 key propositions for NPPF 14 cases, including: The need to distinguish between local and national policies which describe what qualifies as sustainable development (eg NPPF 6, 7, 18 to 219) and policies that determine when a presumption in favour of such development arises. That the NPPF 14 exhaustively defines when a presumption in favour of sustainable development can arise. There is no general presumption outside NPPF 14 (applying Trustees of the Barker Mill Estates v Secretary of State for Communities and Local Government [2016] EWHC 3028 (Admin); [2016 PLSCS 336 and Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin); [2016] PLSCS 88). One proposition seems out of kilter with the rest – that the NPPF 14 presumption “does not extend to a proposal which conflicts with the development plan”. Although not relevant in Reigate, NPPF 14 is explicit that the presumption does extend to such proposals where (1) the development plan is absent, silent or relevant policies are out of date; and (2) any adverse impacts of granting consent would not significantly and demonstrably outweigh the benefits considered against NPPF policies in the round (and no specific restrictive NPPF policies apply – which should now include “related” development plan policies, following Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKSC 37; [2017] PLSCS 105). The inspector could, in theory, have reached the same outcome by applying the section 38(6) starting point, but giving efforts to close the OAN gap greater weight. However, the judgment implies that in the absence of something significant – such as evidence that local housing stress had worsened substantially since the local plan was adopted – the decision would have been doomed to the same fate.   Roy Pinnock is a partner in the planning and public law team at Dentons