Is there a presumption in favour of sustainable development outside of paragraph 14 of the NPPF?
Earlier this year the High Court (Coulson J) suggested in Wychavon District Council v SSCLG & Crown House Developments Ltd  EWHC 592 (Admin) that there was a general presumption in favour of sustainable development within the guidance in the NPPF and that the presumption was not confined to the circumstances set out in paragraph 14 of the NPPF. The High Court therefore upheld the decision of an Inspector who had applied such a general presumption in order to grant planning permission for housing development despite finding that the proposal was contrary to the local plan and could not benefit from the presumption set out in paragraph 14 of the NPPF (and there was a 5 year Housing Land Supply).
This week two separate High Court judgments have been delivered which suggest that this is a misinterpretation of the NPPF and that there is no such general presumption in the NPPF.
The first decision (by Green J) on 22 November 2016 was East Staffordshire Borough Council v SSCLG & Barwood Strategic Land II LLP  EWHC 2973 (Admin). In that case an Inspector had found that a housing proposal was in conflict with up-to-date policies of a recently adopted Local Plan, that the Local Plan was not absent or silent, and that it was common ground that there was a 5 year HLS. He therefore found that the presumption in para 14 of the NPPF did not apply. Nevertheless, based on Wychavon the Inspector found that the presumption in favour of sustainable development was a “golden thread” running through the NPPF and so could be applied as a material consideration to offset the conflicts with the Local Plan. The Inspector found that the proposal was sustainable development when judged against the three dimensions in the NPPF and found that the presumption justified the grant of planning permission. The High Court has now ruled that he was wrong and had misinterpreted the NPPF. Green J held that it was implicit within para 14 of the NPPF that a proposal that was contrary to an up-to-date development plan was not sustainable development in NPPF terms and so should be refused. He also held that the “golden thread” only applied to the presumption in para 14 and that there was no broader presumption in favour of sustainable development in the NPPF. However, he also considered that the legal requirement to allow for other material considerations meant that there was still what he termed a “residual discretion” to grant planning permission outside of para 14 of the NPPF. He considered that only in an “exceptional” case would a proposal that was not sustainable development in terms of para 14 justify the grant of permission but found he did not need to decide the parameters that would govern such a case. Because Green J recognised that his analysis of the operation of the presumption differed from Coulson J in Wychavon he granted permission to appeal to the Court of Appeal.
The second decision (by Holgate J) on 25 November 2016 was Trustees of the Barker Mill Estate v Test Valley Borough Council & SSCLG  EWHC 3028 (Admin). This was a consolidated hearing of a s.113 Planning & Compulsory Purchase Act 2004 challenge to the adoption of the Test Valley Revised Local Plan and a s.288 TCPA 1990 challenge to the dismissal of appeals for B8 employment on a site allocated in that Local Plan for B1 development. Both challenges were dismissed. The planning appeal took place whilst the Local Plan was in its final stages and it had been formally adopted by the time the s.78 Inspector made her decision. Unsurprisingly, she found that the Local Plan was up-to-date, that the proposals were contrary to it, and that the proposals could not benefit from the presumption in favour of sustainable development in para 14. In the s.288 challenge the claimant argued, relying on Wychavon, that the Inspector had failed to apply a general presumption in favour of sustainable development. Holgate J rejected the contention that there was any such presumption in trenchant terms. He made it clear that he disagreed with the reasoning of Coulson J in Wychavon and suggested that Coulson J might have reached a different conclusion had he been provided with the decision of Jay J in Cheshire East Borough Council v SSCLG  EWHC 571 (Admin) which, coincidentally, had been issued earlier on the same day.
Because Holgate J had been provided with the judgment in East Staffordshire he was also able to consider that decision in his judgment. Whilst he concurred with Green J that the approach in Wychavon was wrong, he made it clear that he did not share Green J’s view that there was a “residual discretion” to be applied on an “exceptional” basis in cases where a proposal could not benefit from the presumption in para 14. Holgate J described the view that there was such a “residual discretion” as a “novel concept” for which he saw no need or justification, and that the relationship between para 14 and s.38(6) PCPA 2004 was adequately explained in existing case law, including Hopkins Homes v Suffolk Coastal District Council  EWCA Civ 168.
Holgate J emphasised that the presumption in para 14 was not limited to decision taking where a development plan was absent or silent or relevant policies were out-of-date. The presumption was wider and applied both to the plan-making stage and also to proposals that were in accordance with the development plan. However, there was no scope within the NPPF, properly understood, for any presumption outside of the circumstances described in para 14.
Michael Bedford QC acted for Test Valley Borough Council on both the s.113 challenge and the s.288 challenge in the Barker Mill case.