Inspector's interpretation of sustainable development debated for residential scheme

East Staffordshire Borough Council successfully challenged an inspector's decision to grant planning permission for a housing development, the High Court ruling that there had been a failure to properly assess whether it comprised a sustainable form of development.

The inspector (DCS No. 400-011-392) had concluded that the scheme conflicted with a range of local plan policies which were up to date because the council could demonstrate a five-year supply of housing land. But the inspector determined that he could nonetheless grant planning permission on the basis that he could apply a broader presumption in favour of sustainable development when the NPPF was read as a whole. The local planning authority asserted that the inspector had failed to provide adequate reasons for his decision and in particular why the conflict with the local plan and a failure to properly analyse and apply paragraph 14 did not lead to the appeal being dismissed. The secretary of state agreed that the inspector’s decision should be quashed and argued that a broad interpretation of the presumption in favour of sustainable development should not be applied. The developers of the scheme opposed the council’s application to quash the decision.

Mr Justice Green agreed that the starting point had to be section 38(6) of the Planning and Compulsory Purchase Act 2004. This required the scheme to be rejected unless there were countervailing material considerations. Paragraph 14 of the NPPF could amount to such a consideration and while the framework was normally a major part of the material considerations, it did not comprise all of them. Where a scheme was in conflict with the development plan, there was discretion to grant permission but the outcome of any assessment against paragraph 14 of the framework must be given considerable weight, the judge held. Where, as in the case before him, the inspector had not directly addressed the effect of paragraph 14 but nonetheless concluded that it did comprise sustainable development, it was necessary for reasons to be provided why permission should be granted. This had to include identifying the substantial and demonstrable benefits, the judge disagreeing with the ruling in Wychavon District Council v Secretary of State for Communities and Local Government [2016] upon which the inspector had relied, where it had been held that there was a freestanding presumption in favour of any development which amounted to sustainable development. The judge noted that the inspector had not made reference to another judgment Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016], which had been issued at the same time, where it was held that there was no significant discretion for decision makers in applying a broader test of sustainable development operating independently of paragraph 14.

The presumption in favour of the development had been rebutted, paragraph 14 requiring the benefits of the scheme to be assessed against the harm including the conflict with the development plan, the court held. Consequently, the inspector’s discretion at that stage did not incorporate a presumption in favour of approval by reference to looking at the NPPF as a whole and this did not equate to a ‘neutral’ starting point. Rather, it suggested that permission should be withheld, particularly since the development plan policies were up to date, the second bullet point in paragraph 14 therefore disapplied. Accordingly, the inspector had materially misdirected himself in then concluding that the scheme was nonetheless sustainable having regard to the framework as a whole. There had also been an error in concluding that there was no need to conduct a balancing exercise between facts leading to approval and those pointing to refusal. Adequate reasons must be provided, the judge ruled, and there was no evidence in the decision letter to indicate that the inspector had addressed why the conflict with local plan policies were outweighed by his conclusion that it comprised sustainable development.

In so ruling the judge recognised that decision makers did have a discretion outside the scope of paragraph 14 of the NPPF. But this was likely to be the exception rather than the norm that it would be exercised in favour of approval. The judged declined to rule on how exceptional "exceptional" had to be since this would be case specific.

East Staffordshire District Council v Secretary of State for Communities and Local Government

Date: 22 November 2016


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