Barwood Strategic Land II LLP v East Staffordshire Borough Council and another

Town and country planning – Planning permission – Presumption in favour of sustainable development – Inspector appointed by second respondent allowing appeal against refusal of planning permission for residential development adopting broad approach to presumption – High Court granting first respondents’ application to quash decision – Appellant appealing – Whether inspector mistaking true meaning and scope of government policy for “presumption in favour of sustainable development” in the National Planning Policy Framework (NPPF) – Appeal dismissed The first respondent local authority refused the appellant developer’s application for planning permission for 150 dwellings with associated landscaping, public open space, access, drainage, associated infrastructure, earth works and other ancillary neighbouring works on land at Red House Farm, Lower Outwoods Road, Burton upon Trent, Staffordshire. An inspector appointed by the second respondent secretary of state allowed the appellant’s appeal against that decision. Adopting a broad presumption in favour of sustainable development, he concluded that, although the proposal was in conflict with the development plan, that conflict was outweighed by other material considerations and therefore planning permission should be granted. The High Court allowed the application of the first respondents under section 288 of the Town and Country Planning Act 1990 for an order quashing the inspector’s decision. The judge accepted the first respondents’ argument, unopposed and supported by the second respondent, that in reaching that conclusion, the inspector had erred in law: [2016] EWHC 2973 (Admin); [2016] PLSCS 318. The appellant appealed. The main issue was whether the inspector misdirected himself in performing the task set for him under section 38(6) of the Planning and Compulsory Purchase Act 2004 by mistaking the true meaning and scope of government policy for the “presumption in favour of sustainable development” in the National Planning Policy Framework (NPPF). Held: The appeal was dismissed. (1) The “presumption in favour of sustainable development” in the NPPF, unlike the presumption in favour of the development plan in section 38(6) of the 2004 Act, was not a statutory presumption. It was only a presumption of planning policy, which required of a planning decision-maker an exercise of planning judgment within the balancing exercise mandated under section 38(6) and undertaken in accordance with the relevant case law principles. Paragraph 14 of the NPPF described what the “presumption in favour of sustainable development” meant, explaining in clear and complete terms the circumstances in which, and the way in which, it was intended to operate. The presumption, as described in para 14, was the so-called “golden thread running through both plan-making and decision-taking”. There was no other presumption in favour of sustainable development in the NPPF, either explicit or implicit, and no other “golden thread”. (2) When the section 38(6) duty was lawfully performed, a development which did not earn the “presumption in favour of sustainable development”, and did not, therefore, have the benefit of the “tilted balance” in its favour, might still merit the grant of planning permission. On the other hand, a development which did have the benefit of the tilted balance might still be found unacceptable, and planning permission refused. That was the territory of planning judgment, where the court would not go except to apply the relevant principles of public law. The presumption in favour of sustainable development was not irrebuttable. Thus, in a case where a proposal for the development of housing was in conflict with a local plan whose policies for the supply of housing were out of date, the decision-maker was left to judge, in the particular circumstances of the case, how much weight should be given to that conflict. The absence of a five-year supply of housing land would not necessarily be conclusive in favour of the grant of planning permission. That was not a matter of law but a matter of planning judgment.       (3) The court accepted as correct the judge’s essential conclusion that the inspector misdirected himself as to the policy for the presumption in favour of sustainable development in the NPPF. The inspector had applied the presumption in favour of grant of approval having acknowledged and accepted that the proposed development was inconsistent with the local plan. However, para 14 of the NPPF was the embodiment of the presumption and once that paragraph had been worked through and a conclusion arrived at that the proposal was inconsistent with the local plan, there was no presumption remaining which could be relied upon in favour of grant. The reverse presumption in para 12 that permission “should be refused” did not mean that there was no discretion outside para 14 but it did mean that the discretion did not incorporate a presumption in favour of approval. The starting point was adverse to the grant of permission. The inspector held that the presumption applied outwith para 14 and materially misdirected himself as to the test to be applied to the evidence. Accordingly, the inspector had misdirected himself in performing his task under section 38(6): Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin); [2016] PLSCS 88,  Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin); [2017] EGLR 14 and Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKSC 37; [2017] PLSCS 105 applied. Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin); [2016] PLSCS 96 disapproved. (4) The proposal was in conflict with three policies in a recently adopted local plan and was contrary to the statutory presumption in favour of the development plan under section 38(6) of the 2004 Act. Further, the inspector had made a material error of law in concluding that there was a countervailing policy presumption in favour of the development plan. The court could not conclude that his decision would have been the same, or not substantially different, had he not made that error. Accordingly, the court’s discretion should not be exercised against granting relief. Satnam Choongh and James Corbet Burcher (instructed by Bird Wilford & Sale Solicitors, of Loughborough) appeared for the appellant; John Hunter (instructed Sharpe Pritchard LLP) appeared for the first respondents; Gwion Lewis (instructed by the Government Legal Department) appeared for the second respondent. Eileen O’Grady, barrister Click here to read a transcript of Barwood Strategic Land II LLP v East Staffordshire Borough Council and another