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Planning Court rules that paragraph 14 NPPF defines full scope of presumption in favour of sustainable development

DATE: 25 Nov 2016

In a far-reaching judgment that will have immediate implications for planning decision-making generally in England, Green J, sitting in the Planning Court in Birmingham, has held that paragraph 14 of the National Planning Policy Framework sets out the full scope of the presumption in favour of sustainable development: East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin).

The court agreed with the Secretary of State that, once the relevant tests in paragraph 14 have been worked through, there is no remaining general presumption in favour of sustainable development, outwith paragraph 14, to be considered by reference to the policies in the NPPF as a whole.

The proper approach to paragraph 14 of the NPPF has been in doubt since two other judges of the Planning Court handed down conflicting judgments on the point within hours of each other on 16 March 2016: Wychavon District Council v SSCLG [20166 EWHC 592 (Admin); Cheshire East Borough Council v SSCLG [2016] EWHC 571 (Admin).

In the Wychavon case, Coulson J observed that it was “quite wrong” to say that the presumption did not exist outside paragraph 14 given the references to the presumption elsewhere in the NPPF and its status as the “golden thread running through both plan-making and decision-making” [41].

In the Cheshire East case, Jay J came to the opposite conclusion, concluding that “paragraph 14 teaches decision makers how to decide whether the proposal, if approved, would constitute sustainable development”. There was not, nor could there be, said the judge, “a question of assessing whether the proposal amounts to sustainable development before applying the presumption within paragraph 14” [23].

The Secretary of State was represented in the Cheshire East case, but not in the Wychavon case.

In his judgment in the East Staffordshire case, Green J has preferred Jay J’s analysis in Cheshire East of the proper approach to paragraph 14 NPPF and respectfully disagreed with Coulson J in Wychavon. At [42], Green J said:

“42. […] paragraph [14] is the embodiment of the presumption and once that paragraph has been worked through and a conclusion has been arrived at that the proposal is inconsistent with the Local Plan, then there is no presumption remaining which can be relied upon in favour of grant (see paragraph [30]-[33] above). At this stage the presumption has been rebutted. This is because, as per paragraph [12] NPPF, it is inconsistent with the Local Plan and the proposal should be refused. Paragraph [12] creates a reverse presumption – “it should be refused”. This does not mean that there is no discretion outside of paragraph [14] but it does mean that the discretion does not incorporate a presumption in favour of approval and, moreover, the starting point is not neutral but is adverse to the grant of permission”.

Unusually, Green J himself granted the interested party developer permission to appeal to the Court of Appeal on this issue, acknowledging that it had been the subject of conflicting High Court judgments and was relevant to planning decision-making generally. The judge also observed that the matter would benefit from expedition, while recognizing that any decision on expedition would be for the Court of Appeal.

Gwion Lewis acted for the Secretary of State for Communities and Local Government.