The High Court in Wychavon District Council v Secretary of State for Communities and Local Government and Crown House Developments Ltd [2016] EWHC 592 (Admin) suggested that there was a general presumption in favour of sustainable development within the guidance in the National Planning Policy Framework and that the presumption was not confined to the circumstances set out in paragraph 14 of the NPPF.
Two separate High Court judgments have now been delivered which suggest that this is a misinterpretation of the NPPF and that there is no such general presumption in the NPPF.
In East Staffordshire Borough Council vSecretary of State for Communities and Local Government and Barwood Strategic Land II LLP [2016] EWHC 2973 (Admin), 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 five-year housing land supply. 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 which justified the grant of planning permission.
The High Court, however, ruled that he was wrong and had misinterpreted the NPPF. 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. 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, the legal requirement to allow for other material considerations meant that there was still a “residual discretion” to grant planning permission outside of para 14 of the NPPF but only in an “exceptional” case would a proposal that was not sustainable development in terms of para 14 justify the grant of permission. Because the High Court recognised that his analysis of the operation of the presumption differed from Wychavon he granted permission to appeal to the Court of Appeal.
In Trustees of the Barker Mill Estate v Test Valley Borough Council and Secretary of State for Communities and Local Government [2016] EWHC 3028 (Admin), this was a consolidated hearing of a s challenge to the adoption of the Test Valley Revised Local Plan and a 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 inspector 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 para 14. In one of the challenges, the claimant argued, that the inspector had failed to rely on Wychavon and apply a general presumption in favour of sustainable development. The High Court rejected this and disagreed with the reasoning in Wychavon.
The High Court concurred with the East Staffordshire that the approach in Wychavon was wrong, but did not share the 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. The presumption 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.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
