In Barwood Strategic Land II LLP v East Staffordshire Borough Council and Secretary of State for Communities and Local Government [2017] EWCA Civ 893, the Court of Appeal has clarified the scope of the “presumption in favour of sustainable development” set out in the National Planning Policy Framework (NPPF) and how it related to the presumption in favour of the development plan under s.38(6) of the Planning and Compulsory Purchase Act 2004 (“2004 Act”).
Planning permission for a residential development of up to 150 dwellings had been refused because a local plan restricted development. A planning inspector subsequently allowed the developer’s appeal on the basis that although the proposal was in conflict with the development plan, this was outweighed by other material considerations.
The matter went before the High Court, who held that the inspector had erred in his decision-making process. The court quashed the grant of planning permission. The developer appealed and the Court of Appeal dismissed the appeal.
The judgment makes it clear that planning applications must be decided in accordance with the development plan unless material considerations indicate otherwise, as per s.38(6) of the 2004 Act. The presumption in favour of sustainable development contained in the NPPF is not a statutory presumption, but a presumption of planning policy and, as stated in para 14 of the NPPF, forms the “golden thread “. The application of planning policies is one for the decision-maker, and not for the court to interfere with. However, the court considered the inspector had erred in applying the presumption under the NPPF when the proposal was inconsistent with the local pan.
Perhaps the key point to take away from this case is the need to avoid an over-legalistic approach. The case has reiterated the point that the decision-maker has a wide discretion when considering such applications and the process, accordingly, is a flexible one. It also cements the primacy of local policy over the NPPF.
Martha Grekos is a partner and head of planning at Howard Kennedy
