22 November 2016
Keith Fenwick, WYG, Director takes a look at the implications of today’s High Court judgment for the application of the National Planning Policy Framework (NPPF) to development that is inconsistent with an adopted plan.
When Johnny Nash sang in 1972 that “There are more questions than answers, and the more I find out the less I know”, little would he have guessed how apt his musings would be to town planners some 45 years later. A High Court ruling issued today does not settle a matter with which many planners are struggling - the application of the NPPF’s paragraph 14’s ‘presumption in favour of sustainable development’ to development that is inconsistent with an adopted plan.
The High Court ruling by Mr Justice Green sets a potential benchmark for development proposals that are inconsistent with an adopted Local Plan, making all but the ‘exceptional’ incapable of approval. In the case, East Staffordshire Borough Council (ESBC) v SoSCLG & Barwood Strategic Land II LLP, the second defendant, (Barwood), has been granted leave to challenge the judgment in the Court of Appeal.
The judgment tackles three critical aspects of how the scope and effect of paragraph 14 should apply to sustainable development which is inconsistent with an up-to-date Local Plan.
In the specifics of this case, an Inspector had granted permission, following a written representations appeal made by WYG on behalf of Barwood, for 150 houses on a greenfield site adjoining Burton upon Trent. The Inspector had concluded that, whilst the proposal conflicted with the strategic policies of a recently adopted Local Plan, and there was a five-year land supply in place, the development was sustainable and there was a wider presumption working as the golden thread throughout the Framework. This enabled the Inspector, in summing up the appeal, to state that the “…balance of the various considerations leads me to conclude that the appeal should be allowed.”
On appeal by ESBC to the High Court, the three aspects considered by the Judge were:
1) What is the existence and scope of the discretion to approve a development which is inconsistent with a Local Plan?
2) What is the duty of the decision-maker to address the weight and significance of the particular reasons why a proposed development is inconsistent with a Local Plan?
3) What is the relevance of a finding by an Inspector that a proposed development which is inconsistent with a Local Plan is nonetheless “sustainable”?
Dealing with the three points in turn, Mr Justice Green concluded;
1) There is a discretion open to the decision-maker to approve development inconsistent with a Development Plan, but the scope of that discretion is of “relatively narrow construction”, and should be applied only in “exceptional” cases:
2) There is a heightened requirement on an Inspector, in approving development that is inconsistent with a Local Plan, to spell out the ‘pros’ and ‘cons’ of a proposal in a transparent balancing exercise, and that the assessment of one must be commensurate or proportionate to that of the other.
3) Having set up the third proposition, Mr Justice Green effectively avoids addressing it, by stating that the claim succeeds on the first two grounds so there is no necessity to conclude decisively on the third. However, in reaching this conclusion he himself deliberates on the challenge of “…how one categorises a development which is inconsistent with a Local plan yet is still, quite properly, to be approved.” He does not provide any insight in this regard.
So where does this leave Johnny Nash in his search for ‘answers’ on the way in which practitioners should approach the Framework’s para 14 presumption? With more local authorities getting Local Plans over the adoption line, this will become an increasingly important area of interpretation for developers of speculative sites in future.
If Mr Justice Green’s judgment remains intact following any challenge in the Court of Appeal, then in all but “exceptional” cases, development outside of a Local Plan strategy will not (it is tempting to add, ‘by definition’) be sustainable and ought to be refused. This approach, incidentally, was explicitly supported by the Secretary of State in the High Court, who conceded to the challenge, and who was represented in Court supporting ESBC’s criticisms of his own Inspector’s appeal decision.
There now exists a direct conflict between the judgments of Coulson J in Wychavon on the one hand and Green J in ESBC and Jay J in Cheshire East on the other, regarding the scope of any presumption outside of para 14. We are none the wiser as to how to address a development that is not in a Local Plan, but ought to be approved. Hopefully the Court of Appeal will assist Johnny Nash (and everyone else too).
You can read the Judgment in full here.
Director, WYG, Birmingham
For more information contact Keith via E: firstname.lastname@example.org