Council successfully challenges greenfield planning permission appeal

Trevor Griffiths, Sharpe Pritchard

Reigate & Banstead Borough Council has been successful in its High Court challenge to a Planning Inspector’s decision to grant planning permission for 46 residential units on greenfield land within the rural surrounds of Horley and Gatwick Airport.

The existing Reigate and Banstead Local Plan prioritised development in urban areas and made clear that sites outside such areas should only be released if necessary to maintain the five-year house supply. Whilst accepting that a conflict existed between the proposed development and the Local Plan, the Inspector allowed the developer’s appeal and granted planning permission on the ground that the proposed development was “sustainable” and would not cause material harm.

According to section 38(6) of the Planning and Compulsory Purchase Act 2004, if regard is to be had to the local development plan, the determination must be made in accordance with the plan unless material considerations indicate otherwise. In applying section 38(6), the presumption in favour of sustainable development at paragraph 14 NPPF is a material consideration but does not displace the statutory presumption in favour of plan-led decision-making.

In line with the borough council’s submissions, which were supported by the Secretary of State, Mrs Justice Lang reiterated that there is no general presumption in favour of sustainable development outside NPPF 14 (Barker Mill applied).

The Judge further confirmed that whilst a development proposal which complies with the local plan will constitute sustainable development, the presumption in favour of sustainable development in NPPF 14 will not extend to a proposal which conflicts with the development plan. Such a proposal should therefore be refused unless material considerations indicate otherwise.

Quashing the Inspector’s decision, the judge concluded that in embarking into a freestanding assessment of whether the proposed development was sustainable, the inspector:

  • Failed to take into account that the up-to-date local plan should be presumed to allocate and promote sustainable development; and
  •  Failed to explain how he came to the conclusion that the proposal constituted sustainable development when it was not in accordance with the development plan.

Trevor Griffiths, partner at Sharpe Pritchard in the administrative law and planning law teams, acted for the council. A transcript of the judgment can be found at this link.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.