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Court of Appeal resolves conflicting judgments on paragraph 14 NPPF

DATE: 05 Jul 2017

What is meant by the “presumption in favour of sustainable development” in national planning policy for England? Is its content defined only by paragraph 14 of the National Planning Policy Framework (“NPPF”), or is it a general presumption in favour of any development that is assessed to be sustainable based on the policies of the NPPF as a whole, not just paragraph 14?

In a much-anticipated judgment, the Court of Appeal has agreed with the Secretary of State that paragraph 14 NPPF sets out the full scope of the presumption: Barwood Strategic Land II LLP v East Staffordshire BC and SSCLG [2017] EWCA Civ 893.

The proper approach to paragraph 14 of the NPPF has been in question since two 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 the Barwood case, Green J, sitting in the Planning Court, agreed with the Secretary of State that Jay J’s analysis in Cheshire East of the proper approach to paragraph 14 NPPF was to be preferred to Coulson J ‘s approach in Wychavon. Shortly after Green J gave judgment, Holgate J also said, in another case in which the same issue arose, that he agreed with Jay J, and disagreed with Coulson J: Trustees of the Barker Mill Estates v Test Valley Borough Council and SSCLG [2016] EWHC 3028 (Admin).

The Secretary of State invited the Court of Appeal in Barwood to approve Holgate J’s analysis in Barker Mill Estates as a clear exposition of the presumption in favour of sustainable development in paragraph 14 NPPF. Lindblom LJ, giving the judgment of the court, did so, and cautioned against attempts to over-complicate matters:

“50. […] The court should always resist over-complication of concepts that are basically simple. Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law (see paragraphs 8 to 14, 22 and 35 above).I would endorse, and emphasize, the observations to the same effect made by Holgate J. in paragraphs 140 to 143 of his judgment in Trustees of the Barker Mill Estates.”

Gwion Lewis acted for the Secretary of State for Communities and Local Government in the Court of Appeal and in the Planning Court.