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Court Clarifies Correct Approach To Paragraph 14 NPPF

How does the presumption in favour of sustainable development, articulated in paragraph 14 of the NPPF, operate in practice? Should all developments that are "sustainable" in the sense of overall compliance with the NPPF benefit from the presumption, even if they are at odds with the development plan? What about if the relevant development plan policy contains a presumption against development, except in certain circumstances? The High Court has answered these questions very clearly in Wynn-Williams v Secretary of State for Communities and Local Government [2014] EWHC 3374: there is no automatic application of paragraph 14 of the NPPF, which only applies if the development plan is absent, silent or out of date. This is so even if the development plan is old and was adopted before the publication of the NPPF, and even if the relevant development plan policy contains a presumption against development.

The High Court clarified that the starting point of paragraph 14 of the NPPF is the same as that in section 38(6) of the Planning and Compulsory Purchase Act 2004, namely whether the development proposals accord with the development plan. If they do not, then the NPPF requires that the first question to be asked is whether the relevant policies in the development plan are "out of date" in the sense defined in paragraphs 211 and 215 of the NPPF: are the relevant policies consistent with paragraphs 18 to 219 of the NPPF? In making this assessment, the age of the development plan is irrelevant. The question is one of substance.

If the relevant development plan policies are consistent with the NPPF, but the proposed development is contrary to those policies, then paragraph 14 of the NPPF is not applicable, and the presumption in favour of sustainable development does not arise for consideration. It is only where the relevant development plan policies are out of date that permission must be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole.

The key policy in issue in Wynn-Williams concerned development in the open countryside, and appeared in a local plan of some veneration, as it was adopted in 2002. The policy stated that development in the open countryside outside the defined settlement boundary would not be permitted unless specifically provided for by other policies in the local plan and there was no significant detrimental effect on the character of the countryside by virtue of the proposed development's siting, size and prominence in the landscape. Neither the appellant nor the judge, David Elvin QC (sitting as a Deputy High Court Judge) could identify any inconsistency of this policy with the NPPF.

Accordingly, the Deputy Judge held that there was no error of law in the Inspector applying the development plan presumption against development in the countryside rather than the presumption in favour of sustainable development in the NPPF. Indeed, it would have been an error for the Inspector to apply paragraph 14 in those circumstances.

Click here to read the judgment.

Estelle Dehon appeared for the Secretary of State for Communities and Local Government.