Presumption in favour of sustainable development re-assessed given previous high court ruling

A Hampshire landowner who brought two claims, the first in the context of section 113 of the Planning and Compulsory Purchase Act 2004 challenging a revised local plan adopted by the defendant local authority; and the second challenging an inspector's decision to dismiss its planning appeals in respect of two sites for housing development, failed in the High Court which concluded that there had been no error in law.

The claimant was involved in promoting various sites for residential and commercial development, and had objected to the housing growth and spatial strategy proposed in the Test Valley Borough Council’s local plan. Following an examination, the inspector recommended that the plan, with proposed modifications, was "sound" under the 2004 Act and capable of adoption. The council accepted that recommendation and adopted the plan.

In response to this decision the claimant argued that, in preparing and adopting the local plan, the local authority had failed to correctly assess the full objectively assessed housing need (FOAN) for its district as required by the National Planning Policy Framework (NPPF). It was also asserted that it had failed to meet its duty to co-operate with other local authorities under the 2004 Act by considering whether the shortfall in FOAN in its area could be met by the provision of additional housing in neighbouring districts. Finally, it was submitted that the council had also failed to allocate sufficient land for the objectively assessed need for storage and distribution development (B8 development) in compliance with the NPPF.

In respect of the dismissed appeals (DCS Number 200-004-793) it was submitted that the inspector had erred in law in rejecting its contention that, because the development plan policies were "silent" or "out of date" in respect of the provision for B8 development, the presumption in favour of sustainable development under paragraph 14 of the NPPF applied. As a consequence the inspector failed to apply the NPPF's general presumption in favour of sustainable development as determined in Wychavon District Council v Secretary of State for Communities [2016] The secretary of state accepted that the inspector had not taken account of any wider presumption in favour of sustainable development falling outside the scope of paragraph 14, but criticised the way in which the Wychavon case had been handled and submitted that it had been wrongly decided, asserting that the only presumption created by the NPPF in favour of sustainable development was that contained in paragraph 14.

Mr Justice Holgate held that a local authority had, first, to establish the FOAN as an objective exercise, disregarding policy considerations and other matters such as the availability of land; it could then consider whether policy or other considerations justified constraining, or increasing, the FOAN so as to arrive at the amount of housing which the policies in the new plan would require to be provided. He ruled that the local authority and the inspector had followed the correct approach and their determination of the FOAN could not be criticised.

Whether a local plan was "sound" was a matter of judgment for the inspector and the court's role in respect of compliance with the duty to co-operate was limited to reviewing whether the inspector could reasonably have concluded that the local authority had complied with that duty. It would undermine the structure of the 2004 Act and the procedure it provided for review by an independent inspector if the court sought to apply a more intrusive form of review in its assessment of the underlying lawfulness of the local authority's conduct or performance. The judge concluded that the inspector had rightly found that the local authority had obtained sufficient information on whether adjoining authorities would be able to provide affordable housing to meet any part of the needs arising within its area, and that it would have been pointless to make a formal request for assistance in meeting the shortfall. There was no irrationality in this approach.

The final complaint that the local plan did not meet the alleged shortfall in the supply of B8 land had not been raised before the inspector. Although there was no absolute bar on raising of a new point in a statutory review of a planning decision, it was difficult to see why a factual or policy issue affecting the "soundness" of a plan should be allowed to be raised for the first time when it could have been raised in the context of the examination. Accordingly, there was either no justification for the failure to do so, or not one sufficient to outweigh the disadvantages of allowing a new "soundness" point to be raised after the plan's adoption. Mr Justice Holgate opined that there were powerful reasons for refusing to allow the claimant's new point to be raised but, in any event, it lacked substance since there was no legal basis for suggesting that the plan's policies on land for B8 or other development were irrational or flawed by some public law error. In Wychavon , the secretary of state had accepted that the inspector's decision should be quashed but had not attended the hearing or explained his reasons for taking that view.

Consequently, the judge in that case had not had any assistance from the secretary of state on the NPPF's proper interpretation. In summary, the judge in Wychacon decided that the NPPF contained a general presumption in favour of sustainable development outside the ambit of paragraph 14 because paragraphs 6, 7, 12, 47, 49 and 197 of the framework refer to the presumption in favour of sustainable development. It is said to be the "golden thread" running through the NPPF.

Mr Justice Holgate concluded that assistance of the kind received from the secretary of state in the instant case might well have led to a different outcome in Wychavon. It was plainly unacceptable for the secretary of state simply to accept that an inspector's decision should be quashed as happened in Wychavon, or would not be defended, without explaining to the court and the other parties the precise reasons for taking that view. An unexplained concession by a defendant that a decision should be quashed was just as unacceptable as a draft consent order put before the court for its approval where the reasons for seeking the quashing of a decision were unexplained, ambiguous or lacked sufficient detail. This was a practice which should cease, the court ruled.

Moreover, the judgment in Wychavon had coincided with the judgment in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] and the issues dealt with in that case were sufficiently close to those considered in Wychavon so as to have obliged counsel in the latter case to refer the court to it. Had the judge in Wychavon not been deprived of the opportunity to consider Cheshire East , he might have reached a different conclusion or, at least, have called for submissions from the secretary of state on the interpretation of the NPPF, and reserved his judgment.

Mr Justice Holgate was therefore unable to accept the interpretation placed on the NPPF in Wychavon. If the Government had intended in 2012 to introduce a broader, freestanding presumption in favour of sustainable development, in addition to that contained in paragraph 14, that would have represented a significant change in national planning policy. The presumption in favour of sustainable development was solely contained in paragraph 14 of the NPPF, in accordance with the ruling in Cheshire East.  It followed that the inspector had made no error of law in failing to consider any presumption in favour of sustainable development falling outside the scope of paragraph 14. Both claims were rejected.

Barker Mill Estates Trustees v Test Valley BC
Barker Mill Estates Trustees v Secretary of State for Communities and Local Government

Date: 25 November 2016

Ref: CO/1246/2016 and CO/1901/2016

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