East Staffordshire judgment – next chapter sees ‘presumption in favour of sustainable development’

William Rose, Sharpe Pritchard

A Court of Appeal has recently attempted to clarify the thorny question – what is the scope of the “presumption in favour of sustainable development” in the National Planning Policy Framework?

This basic question formed the basis of an appeal, after judges in the Planning Court differed in their answer to it.

Barwood Strategic Land II LLP, were appealing against an earlier decision to allow East Staffordshire Borough Council, under section 288 of the Town and Country Planning Act 1990, to quash the decision of an inspector appointed by the Secretary of State for Communities and Local Government, who had initially given the go ahead for a housing development.

The site of the proposed development is 6.42 hectares of undeveloped land, outside but adjoining the settlement boundary of Burton upon Trent. Because it is outside the settlement boundary, it is subject to Strategic Policy 8 of the local plan, which restricts development, including the development of housing.

Barwood’s application for planning permission was made on 25 November 2014. The council refused planning permission on 23 July 2015.

The local plan was adopted on 15 October 2015. The section 78 appeal was submitted to the Planning Inspectorate on 25 January 2016.

It was dealt with on the parties’ written representations – in which they had the opportunity to deal with the implications for Barwood’s appeal of Coulson J.’s judgment, handed down on 16 March 2016, in Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin), one of the cases in the Planning Court in which the meaning of the policy for the “presumption in favour of sustainable development” has been considered.

In his decision letter the inspector found that the proposal was in conflict with the development plan, but that this conflict was outweighed by other material considerations, and therefore that planning permission should be granted.

Dismissing Barwood’s appeal, the court held, in line with the latter line of cases, that in granting outline planning permission for a development that was inconsistent with the local plan, the inspector had misdirected himself under section 38(6) by misunderstanding the presumption in favour of sustainable development in the NPPF.

The court confirmed that the statutory presumption in favour of the development plan in section 38(6) cannot be displaced by any purported self-standing presumption in favour of sustainable development.

There is no other presumption in favour of sustainable development other than that described in paragraph 14 NPPF.

Once that paragraph has been worked through and a conclusion has been arrived at that the proposed development is inconsistent with the local plan, there is no presumption remaining which can be relied upon in favour of the grant (because in those circumstances paragraph 12 NPPF introduces a “reverse presumption”).

The Court further clarified that when the section 38(6) duty is lawfully performed, a development which does not earn the “sustainable development presumption”, and which does not, therefore, have the benefit of the “tilted balance” in NPPF paragraph 14, might still merit a grant of planning permission.

Similarly a development which does have the benefit of the “tilted balance” may be found unacceptable and planning permission for it refused. The court decided, in line with the recent cases, that these are questions of planning judgment, where the court will not tread except to apply relevant principles of public law.

William Rose, Senior Associate at Sharpe Pritchard in the administrative law and planning law teams, acted for the Council.

A transcript of the judgment (Barwood Strategic Land II LLP V (1) East Staffordshire Borough Council (2) Secretary of State for Communities & Local Government [2017] EWCA Civ 893) 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.