Policy Briefing: How a ruling on speculative schemes affects you

A court ruling will make non-plan-compliant schemes harder to approve, says Keith Fenwick.

London's Royal Courts of Justice
London's Royal Courts of Justice

Q. What decision does the ruling in East Staffordshire Borough Council v Secretary of State for Communities and Local Government relate to?

A. Following an appeal, a planning inspector granted permission in April to Barwood Strategic Land for 150 new homes on a greenfield site adjoining Burton upon Trent. The inspector found conflict with policies in East Staffordshire Borough Council's recently adopted local plan. Despite this, and the fact there was a five-year housing land supply in place, he allowed the appeal in line with paragraph 14 of the National Planning Policy Framework (NPPF), as he found that the development was sustainable and the presumption in favour of sustainable development worked as a "golden thread" throughout the NPPF. The council then applied for a judicial review, which led to the decision being overturned in the High Court.

Q. What does the ruling actually say about paragraph 14 of the NPPF?

A. This ruling is a guideline on the correct interpretation of paragraph 14, which sets out the presumption in favour of sustainable development. The judgment tackles a critical aspect of how the scope and effect should apply to sustainable development that is inconsistent with an up-to-date local plan.

Mr Justice Green considered how much discretion there is to approve a development that is inconsistent with a local plan. He found that decision-makers can approve developments, but only in "exceptional" cases. In addition, "the concept of 'sustainable development' is predominantly implemented via the local plan" and "the scope for approval of a development which is inconsistent with a local plan is limited".

Q. What impact could the ruling have on the way planning practitioners interpret paragraph 14 of the NPPF?

A. In all but "exceptional" cases, development outside of a local plan strategy will not be sustainable and ought to be refused. This approach was explicitly supported by the secretary of state in the High Court, who conceded to the challenge and supported the council's criticisms of his own inspector's decision.

There now exists a direct conflict between this judgment and previous High Court rulings. Leave to appeal to the Court of Appeal has also been granted, acknowledging this conflict. Clarity is needed on how to address a development that is not supported by a local plan, but otherwise seems to be sustainable. Hopefully, this will come from the Court of Appeal.

Q. What implications does this decision have for local authority planning teams?

A. This judgement will have immediate implications for planning decision-making in England.

Local authorities with up-to-date local plans and a five-year housing land supply will see the benefits, as it appears to give them the ability to refuse all but 'exceptional' cases.

Nonetheless, we must not forget Section 38(6) of the Planning and Compulsory Purchase Act 2004, which states that decisions should be taken in line with the development plan "unless material considerations" indicate otherwise - Mr Justice Green's judgement does not introduce the ability for authorities to effectively put a moratorium on any development that does not accord with the development plan.

Q. Does the decision present any new opportunities or burdens for applicants?

A. With more local authorities getting local plans over the adoption line, this will become an increasingly important area of interpretation for developers of speculative sites in future.

The judgement will raise concern and potentially increase caution among developers. If it survives the challenge, it will change the way that we understand 'sustainable development' and further increase the importance of promoting land for development through development plan allocations. This may increase the focus of developers on site promotion through local plan hearings. Where developers do wish to pursue a site outside an adopted local plan they will need to show their scheme is 'exceptional' or demonstrate the plan's policies are out of date.

Keith Fenwick is a director at WYG, which advised Barwood Strategic Land

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