Judge favours narrow interpretation for sustainable development presumption

A judge has ruled that the presumption in favour of sustainable development in paragraph 14 of the National Planning Policy Framework (NPPF) should not be interpreted broadly to include proposals in conflict with local plans. Green J’s decision follows earlier conflicting decisions of the High Court, each handed down on 16 March – Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin); [2016] PLSCS 88 in which Jay J reached a similar conclusion; and Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin); [2016] PLSCS 96, in which Coulson J applied a wider interpretation, holding that the presumption could apply even where a proposed development did not fall within the four corners of a local plan. It remains to be seen how the higher courts might interpret paragraph 14 of the NPPF. Green J said that the case raised issues of “some wider significance”: the existence and scope of an inspector’s discretion to approve a development inconsistent with a local plan, and the duty of decision makers to address the weight and significance of the reasons why a proposed development is inconsistent with a local plan. He said that, as well as conflicting High Court decisions on the point, paragraph 14 has been applied “in a number of different and inconsistent ways in decisions of inspectors”. On a challenge brought by East Staffordshire District Council, the judge quashed a planning permission for 150 homes at Burton upon Trent, in respect of which he said it was common ground that it was in conflict with the area’s local plan. The inspector had nevertheless granted planning consent on the basis that he considered he was able to apply a broader presumption in favour of sustainable development. While the secretary of state elected not to defend the decision – and in fact made submissions in support of East Staffordshire, arguing against the broader interpretation of paragraph 14 – Barwood Strategic Land II LLP had sought to uphold its planning permission. Green J said that the inspector had relied on the decision in Wychavon, but added: “With respect I do not agree with the conclusion contained in that case.” As a result, he said that the inspector had “materially misdirected himself as to the test to be applied to the evidence”. As a “note of caution” he added that he recognised the existence of a discretion outside of paragraph 14, but said that the exercise of it was likely to be the exception rather than the norm. East Staffordshire District Council v Secretary of State for Communities and Local Government Planning Court (Green J) 22 November 2016 • To send feedback, e-mail jess.harrold@estatesgazette.com or tweet @jessharrold or @estatesgazette