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No scope for an overall assessment of sustainability unless within paragraph 14 of the framework – Barker Mills confirmed

(The latest instalment in 'sustainable development' caselaw)

The Planning Court (Mrs Justice Lang DBE) handed down judgment today in Reigate and Banstead BC v SSCLG, and upheld a s. 288 challenge in which the local authority sought an order quashing a planning inspector's decision to grant permission – contrary to the recently adopted and up-to-date development plan – for up to 46 houses on greenfield land outside Horley. The development plan was clear that such sites should only be released if necessary to maintain a 5 year housing land supply; which was not the case.

The challenge was brought on the basis that the Inspector had failed to comply with the statutory presumption in favour of the development plan, effectively reversing it on the basis of a presumption that because the development was 'sustainable' it should be approved unless material harm could be demonstrated. Notably, the Secretary of State conceded that the Inspector had failed to apply s. 38(6) PCPA 2004, leaving the developer to argue that the decision had been lawful. The Court agreed with the LPA that the decision did indeed contain the errors which had been identified.

The judgement draws on earlier authorities which address the question of whether there is a presumption in favour of sustainable development outside the scope of para 14 NPPF - including most recently Cheshire East BC v Secretary of State for Communities & Local Government [2016] EWHC 571 (Admin); East Staffordshire BC v Secretary of State for Communities & Local Government [2016] EWHC 2973 (Admin) and Trustees of the Barker Mill Estates v Secretary of State for Communities & Local Government [2016] EWHC 3028 (Admin).

The judgment in Reigte and Banstead does not contain any new principles, but it contains (at paragraph 22) a list of 10 propositions which summarise the effect of the previous cases, and which is likely to prove useful to decision makers and practitioners.  Three passages are worth highlighting:-

(i)                 NPPF 14 exhaustively defines the circumstances in which a presumption in favour of sustainable development can arise. There is no general presumption outside NPPF 14. ...

(ii)                 It is important to distinguish between (1) NPPF policies which describe what qualifies as sustainable development which the plan-maker and decision-maker should strive to achieve (i.e. NPPF 6, 7, 18 to 219); and (2) NPPF policies which define the circumstances in which a presumption in favour of sustainable development arises: .....

(iii)                 It is only in the latter case that there will be scope for an overall assessment of whether development is sustainable.

The judgment also strongly emphasises the importance of the statutory development plan in achieving sustainable development, and serves as a reminder that it must always be given primacy. In paragraph 33 the Court said:

"It was not the Inspector's role to alter the housing development priorities in the development plan ...  The strategy in the development plan had been recently determined, through a comprehensive process, by the local planning authority and approved by the Examiner.  The Inspector's role as decision-maker was to take the adopted core strategy and apply it to the proposal in accordance with the statutory presumption in section 38(6) PCPA 2004.  The presumption in favour of sustainable development in the NPPF, and the need to boost the supply of housing, does not mean that any proposal which increases housing should be granted even if it is contrary to the development plan. It is a core planning principle that planning should be "genuinely plan-led, empowering local people to shape their surroundings" (NPPF 17). This ensures that development is sustainable, and is based upon adequate, up-to-date and relevant evidence about the economic, social and environmental factors in the area as a whole (NPPF 150, 151, 154, 157 and 158).  The development plan also provides consistency and transparency. As Lord Reed said in Tesco Stores, at [18] a development plan is a 'carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it'."

Those words will be warmly welcomed by local planning authorities who have up-to-date plans, who should be able to expect such plans to be followed unless good reason is shown otherwise.

James Findlay QC and Emma Dring acted for Reigate and Banstead Borough Council. Please click here to view the judgment.

James Findlay QC also commented on the decision for an article in Estates Gazette.