Town and country planning – Planning permission – Sustainable development – Inspector appointed by first defendant allowing appeal against refusal of planning permission for residential development – Claimant local authority applying to quash decision – Whether inspector wrongly applying broad test of “sustainable development” – Application granted
The claimant local authority refused the second defendant’s application for planning permission for 150 dwellings with associated landscaping, public open space, access, drainage, associated infrastructure, earth works and other ancillary neighbouring works on land at Red House Farm, Lower Outwoods Road, Burton upon Trent, Staffordshire. An inspector appointed by the first defendant secretary of state allowed the second defendant’s appeal against that decision.
Paragraph 14 of the national planning policy framework (NPPF) created a presumption in favour of sustainable development, by reference to whether a proposal was consistent with a local plan. It was common ground in this case that the proposed development was in conflict with the local plan. In concluding that he could nonetheless approve the proposal, the inspector stated that he was entitled to apply a broader presumption in favour of sustainable development which operated outwith paragraph 14 and which applied wherever a decision maker concluded that a development (including one inconsistent with the local plan) amounted to a sustainable development: see Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin); [2016] PLSCS 96.
The claimants applied to quash that decision, arguing that the inspector had misdirected himself in law as to the test he should apply. The defendant secretary of state indicated that he did not contest the claim and opposed a broad interpretation of the presumption in favour of sustainable development in paragraph 14. He took the view that the application should be allowed. The second defendant resisted the claim.
The claimants argued that the inspector had misdirecting himself as to the nature of his discretion under section 38(6) of the Planning and Compulsory Purchase Act 2004 which required him to make his determination in accordance with the local plan unless material consideration indicated otherwise.
Held: The application was granted.
(1) Paragraph 12 of the NPPF, consistently with section 38(6) of the 2004 Act, stated that a proposal that was inconsistent with a local plan should be refused unless other material considerations indicated otherwise; the NPPF did not alter the statutory status of the local plan as the source and origin of decision making. The NPPF was guidance relevant in drawing up the plan and as a material consideration in determining applications. Paragraph 14 was capable in principle of amounting to a material consideration. A decision that a proposal should not be approved because it was inconsistent with the plan necessarily accorded with the principles governing the existence and approval of sustainable developments in the NPPF. However, in principle there had to be some residual scope for the exercise of a discretion to approve a proposed development which was inconsistent with the local plan. The dispute was as to the scope of that residual power. The presumption in favour of sustainable development was a rebuttable presumption, although it would only yield in the face of significant and demonstrable adverse impacts. In practice, there would be questions of fact and degree. The stronger the planning benefits were assessed to be, the more tenaciously the presumption would operate and the harder it would be to displace it: R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] PLSCS 137 considered.
(2) When a decision was being considered in a case where the proposed development conflicted with the local plan, and was thereby prima facie to be refused under paragraphs 12 and 14 of the NPPF, the question was whether there were substantial and demonstrable objective benefits which outweighed the adverse starting point. In agreement with the decision in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC571 (Admin); [2016] PLSCS 88, the court favoured a relatively narrow construction of the residual discretion outside of paragraph 14, consistent with the core planning principle that planning decisions be made with a high degree of predictability and efficiency. Paragraph 14 reiterated the powerful nexus between the local plan and sustainable development with the latter being defined by reference to the former. Local plans had to be prepared with the objective of contributing to the achievement of sustainable development and they had to be consistent with the presumption in favour of sustainable development: Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC571 (Admin); [2016] PLSC 88 followed. Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin); [2016] PLSCS 96 not followed.
(3) In the present case, the inspector applied the presumption in favour of approval having accepted that the proposed development was inconsistent with the local plan. However paragraph 14 was the embodiment of the presumption and once that paragraph had been worked through and a conclusion arrived at that the proposal was inconsistent with the local plan, there was no presumption remaining which could be relied upon in favour of grant. At that stage the presumption had been rebutted because it was inconsistent with the local plan and the proposal should be refused. The discretion did not incorporate a presumption in favour of approval. The inspector had misdirected himself as to the test to be applied to the evidence.
(4) The inspector made a material error in considering that there was no need to conduct a balancing exercise, where on the one side of the scales the inspector placed the facts that he found led to approval of the proposal; and on the other side were placed all those facts and matters which led the local authority to reject development on the site in dispute as inconsistent with the local plan. If a decision maker was to approve a proposal which was inconsistent with the local plan, the reasons for doing so had to be set out in the decision: Bloor Homes East Midlands Ltd v Secretary of State for Local Communities and Government [2014] EWHC 754 considered.
(5) The inspector had stated explicitly that the proposal would not comply with any of the exceptions set out in the local plan and accepted that the site was not a strategic allocation in the local plan. The mere recitation by the inspector that the development plan had been taken into account and balanced was not enough. The inconsistency between the proposal and the local plan was a potentially weighty and substantial matter militating in favour of refusal of the proposal. The inspector therefore erred in failing to address relevant considerations and/or in give reasons for his conclusions.
Mr Hunter (instructed by Sharpe Pritchard) appeared for the claimants; Gwion Lewis (instructed by the Government Legal Department) appeared for the first defendant; Satnam Choongh and James Corbet Burcher (instructed by Bird, Wilford & Sale Solicitors, of Loughborough) appeared for the second defendant.
Eileen O’Grady, barrister
Click here to read a transcript of East Staffordshire Borough Council v Secretary of State for Communities and Local Government and another.
