Court of Appeal duck question of correct approach to paragraph 14 NPPF

01 Jan 2018

Planning and Environment

The vexed question of the correct approach to paragraph 14 and footnote 9 of the NPPF remains unresolved as the Court of Appeal chose not to grapple with the issue.

The point came before them on an appeal concerning a grant of permission for a crematorium. The Appellant Parish Council argued that Aylesbury Vale District Council should have, and failed to, carried out a sequential assessment as the site was partially in a location at risk of flooding. The Appellant also argued that because the site was in a location at risk of flooding the effect of paragraph 14 and footnote 9 of the NPPF was that the presumption in favour of sustainable development could not arise in any circumstances.

The Court of Appeal allowed the appeal on the first ground, rejecting the Council’s argument that properly interpreted the officer’s report to committee gave good reasons for not requiring a sequential assessment and held that properly interpreted the committee report contained a misunderstanding that a sequential test was not required where the site was previously developed. The approach of the Court of Appeal makes clear the Courts will continue to take a strict interpretation of policy in relation to flooding.

As the Court of Appeal found for the Appellant on the first ground it was not strictly necessary for them to go on to consider the correct approach to paragraph 14 NPPF. As the Court identified there are two different possible interpretations of paragraph 14 when read together with footnote 9. The first is that where a development is a development to which a restrictive policy applies (eg where the development falls in an area at risk of flooding) the presumption in favour of sustainable development in paragraph 14 has no relevance in any circumstances. The alternative approach is that the presumption in favour of sustainable development is not relevant to the application of the restrictive policy but if the restrictive policy can be met the presumption revives in relation to the remainder of the decision.

The Court of Appeal accepted that point will ultimately have to be resolved by the Courts and that it had been discussed in a number of first instance decisions. However the Court declined to express any views on the correct approach identifying that they would prefer to do so in a case where they had had the benefit of submissions from the Secretary of State.

Planners must wait for a definitive answer on this point. Please click here to view the Judgement.

Clare Parry represented Aylesbury Vale District Council.