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Achieving Sustainable Development

Keith Langmead Ltd [2017] EWHC 788 (Admin), Lang J

John Litton QC and Graeme Keen appeared for the Claimant

Stephen Whale appeared for the Secretary of State

“The principles of "a strong, healthy and just society " and " promoting good governance " are part of the social element of sustainable development, as commonly understood i.e. the ability of a society to function effectively. These principles are sufficiently broad to encompass the NPPF policies for a system of planning within which " local people and their accountable councils can produce their own distinctive local and neighbourhood plans, which reflect the needs and priorities of their communities " (NPPF 1) and the notion of " empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area " (NPPF 17).” [42]

 

NPPF 6-17

 

NPPF 6

 

Keith Langmead Ltd [2017] EWHC 788 (Admin), Lang J

John Litton QC and Graeme Keen appeared for the Claimant

Stephen Whale appeared for the Secretary of State

“NPPF 6 explains that the policies in paragraphs 18 to 219, taken as a whole, constitute the Government's view of what sustainable development means in practice for the planning system. This clearly includes NPPF 183 – 185 and 198.” [43]


NPPF 7

 

Cash [2013] EWHC 2028 (Admin) John Howell QC

Katrina Yates appeared on behalf of the Secretary of State

“the broad definition of “sustainable development” in paragraph 7 of the NPPF embraces not only social and economic sustainability but also the protection of the environment.” [29]


Fordent Holdings Ltd v Secretary of State for Communities and Local Government
[2013] EWHC 2844 (Admin), HHJ Pelling QC

A decision-maker should not focus on one of the requirements of sustainable development at the expense of another: [6].


William Davis Ltd v Secretary of State for Communities and Local Government
[2013] EWHC 3058 (Admin), Lang J

James Maurici QC appeared on behalf of the Secretary of State

The presumption in favour of sustainable development applies only to development which has been found to be sustainable. 


Dartford BC v Secretary of State for Communities and Local Government
[2014] EWHC 2636 (Admin), Patterson J

Stephen Whale appeared for the Council

“the claimant's argument depends on elevating the dicta in William Davis (supra) into a formulaic approach to be followed in a step by step sequential order in a decision letter. I reject that approach.” [52]

“There is nothing in NPPF, whether at paragraph 7 or paragraph 14 which sets out a sequential approach of the sort that Mr Whale, on behalf of the claimant, seeks to read into the judgment of Lang J at paragraph 37. I agree with Lang J in her conclusion that it would be contrary to the fundamental principles of the NPPF if the presumption in favour of development, in paragraph 14, applied equally to sustainable and non-sustainable development. To do so would make a nonsense of Government policy on sustainable development.” [54]


Cheshire East Borough Council
[2015] EWHC 410 (Admin), Lang J

“In my judgment, it was logical for the Inspector in this appeal to decide what weight he should attach to the development plan, and to determine the issue of housing supply, before he considered the issue of sustainability, as these findings were relevant to the question of sustainability. Whilst not intending to prescribe any sequence for future appeals, I note that in William Davis Ltd the Secretary of State took a similar approach. He assessed the weight to be given to the Green Wedge policy in the development plan, and found that the authority could not demonstrate a 5 year housing supply, before concluding that the proposed development was not sustainable.” [21]


Cheshire East Council v Secretary of State for Communities and Local Government
[2014] EWHC 3536 (Admin), Lewis J

Stephen Whale appeared on behalf of the Secretary of State

Lewis J considered a ground of challenge to the effect that an inspector may have overlooked the fact that, in the glossary to the NPPF, ‘economic development’ excludes housing development. This argument was rejected:

“First, in my judgment, the inspector was aware of the difference between housing development and economic development (narrowly defined to exclude housing). He expressly refers to them separately, in paragraph 29 of his decision set out above. Secondly, as is clear from paragraph 7 of the Framework which is summarised at paragraph 28 of the decision letter, sustainable development (i.e. development generally, not simply one type of development) has three aspects which need to be considered, economic, social and environmental. Thirdly, paragraph 30 of the decision letter makes it clear that the proposed development would make a significant contribution to housing supply in the short term. It was that contribution to the economic dimension of sustainability (not any contribution from economic development) that the Inspector was considering. In other words, the inspector was well aware that this was a development which would contribute to housing supply and he was assessing whether that development was sustainable (as is clear from the remainder of the section of the decision letter dealing with sustainable development). The inspector was not failing to draw a distinction between economic development (narrowly defined) and housing development. He was dealing with housing development and considering whether the proposed development represented sustainable development. For those reasons, this ground of challenge is not sustainable.” [41]

 

Keith Langmead Ltd [2017] EWHC 788 (Admin), Lang J

John Litton QC and Graeme Keen appeared for the Claimant

Stephen Whale appeared for the Secretary of State

“NPPF 7 bullet point 2 describes aspects of the social element of sustainable development; it does not exhaustively describe or define it.” [40]

 

NPPF 8

 

Muller Property Group [2016] EWHC 3323 (Admin), Gilbart J – NB this decision is only to grant leave to apply

Stephen Whale represented the Secretary of State

“[The advice in NPPF 8] is a matter of general exhortation, and is no doubt praiseworthy. But it is not intended to suggest that any development must achieve those attributes jointly and simultaneously. Such an expectation would be bound to end in disappointment.” [38]

 

NPPF 12

 

Patel [2016] EWHC 3354 (Admin), Ouseley J

“[NPPF 12] needs to be read as following on from paragraph 11 which restates s38(6) [of the Planning and Compulsory Purchase Act 2004].” [46]

“[NPPF 12] simply follows that up by saying that the NPPF does not alter the status of the development plan. It does not purport to give effect to some application of s38(6) and s70 [of the Town and Coutnry Planning Act 1990] outside their statutory language.” [54]

 

NPPF 14

 

Colman [2013] EWHC 1138 (Admin), Kenneth Parker J

Zack Simons appeared as junior counsel for the Claimant

John Litton QC appeared for the Third Defendant

References to “policies” are to the express terms of the policies in the plan [23].

Local plan policies which do not take into account economic or other similar benefits, and therefore do not follow the cost/benefit analysis in NPPF 14, cannot be rescued by an argument that such benefits would always be a material consideration. This confuses the concepts of material considerations and factors which are in the plan themselves. [23]


Bloor Homes East Midlands
Limited v Secretary of State for Communities and Local Department [2014] EWHC 754 (Admin), Lindblom J

James Maurici QC appeared for the Secretary of State

“I do not think Mr Cahill's argument gains anything from Kenneth Parker J.'s analysis of the particular policies of the development plan that he had to consider in Colman , in which he compared of those policies with government policy in the NPPF. In any event I do not read Kenneth Parker J.'s judgment in that case as authority for the proposition that every development plan policy restricting development of one kind or another in a particular location will be incompatible with policy for sustainable development in the NPPF, and thus out of date, if it does not in its own terms qualify that restriction by saying it can be overcome by the benefits of a particular proposal. That is more than I can see in what Kenneth Parker J. said, and more than I think one take from the NPPF itself. The question of whether a particular policy of the relevant development plan is or is not consistent with the NPPF will depend on the specific terms of that policy and of the corresponding parts of the NPPF when both are read in their full context. When this is done it may be obvious that there is an inconsistency between the relevant policies of the plan and the NPPF. But in my view that was not so in this case.” [186]


Scrivens v SSCLG
[2013] EWHC 3549 (Admin), Collins J

Richard Turney appeared for the Secretary of State

The Claimant claimed that Inspectors had misunderstood the true meaning of “sustainable development”. According to the Claimant, sustainable development of dwellings is synonymous with a requirement that they be autarkic, in terms of not relying on external energy resources. 

Collins J declined to give a comprehensive definition of ‘sustainable development’, if it contrasted to the Claimant’s definition, which he described as ‘the Pentalogy’. Rather, Collins J found that “[w]hat is sustainable in any particular circumstance will depend on a number of material factors.” His Lordship also found that the fact that a proposal is autarkic will not trump all other planning factors. 

Concerning [60] of the NPPF, the Claimant argued that, in order to achieve the delivery of near-zero energy buildings, buildings which are radically out of character must be required.   Collins J held this [21]: “There is some force in the concern expressed by the applicant, but it is permissible for a decision maker to decide as a matter of judgment that this house in this location however satisfactory in meeting energy requirements cannot be permitted because of its harm to a particular area.”

 
Langton Homes Ltd v Secretary of State for Communities and Local Government [2014] EWHC 487 (Admin), Foskett J

Sasha Blackmore appeared for the Secretary of State

“A demonstrable lack of a 5-year supply of housing land might well demand the more forceful application of the presumption referred to in paragraph 14, whereas an alleged shortfall that cannot be demonstrated will not necessarily neutralise the application of that paragraph, but will demand less of an emphasis upon it depending on other material considerations.” [60] 


Bloor Homes East Midlands
Limited v Secretary of State for Communities and Local Department [2014] EWHC 754 (Admin), Lindblom J

James Maurici QC appeared for the Secretary of State

The fact that allocation of housing land had not been put in place in an allocations DPD did not mean that the development plan was absent or silent, for the purposes of NPPF 14. [58]
 

Grand Union Investments Ltd v Dacorum BC [2014] EWHC 1894 (Admin), Lindblom J

Christopher Katkowski QC and Robert Walton appeared for the Claimant

NPPF 14, along with NPPF 49, provide no comfort to Local Planning Authorities which allow their development plans to become stale. [78]


R (Midcounties Cooperative Ltd) v Forest of Dean DC
[2014] EWHC 3059 (Admin), Hickinbottom J

David Holgate QC and Gwion Lewis appeared for the Claimant

Christopher Katkowski QC appeared for the Interested Party

“As I have indicated, paragraph 14 of the NPPF only applies where there is a policy lacuna: where there is no such lacuna, in respect of an out-of-town retail development that will have a significant adverse impact on the vitality and viability of a town centre, paragraph 27 applies. That creates a presumption in favour of refusal. Paragraph 14 does not give any support at all to the granting of planning permission of retail developments where the adverse impacts do not significantly and demonstrably outweigh the benefits, as the GVA report and OR2 suggest.” [75]


R (Wynn-Williams) v Secretary of State for Communities and Local Government
[2014] EWHC 3374 (Admin), David Elvin QC

David Elvin QC, sitting as a Deputy High Court Judge, considered the role of NPPF 14. He stated that the relevant question was whether there was a relevant policy:

“and, if so, is it consistent and up to date? Whether that question is answered in the positive or negative will depend on the specific circumstances of the case. Paragraph 14 of the NPPF does not determine that question but sets out consequences under “decision-making” which depend on the application of judgment by the decision-maker.” [30]

He also considered the methodology to be applied in NPPF 14:

“Examining the relevant part of paragraph 14 of the NPPF, which is the core of the claimant's case, it requires the policy presumption to be applied either where development proposals accord with the Development Plan or where there are relevant policies and they are out of date unless their adverse effects significantly outweigh the benefits assessed against the policies in the NPPF and in other limited circumstances. It is therefore clear that the starting point in the NPPF is the same as that in section 38(6), namely whether the development proposals accord with the Development Plan. An answer to that question is a necessity if paragraph 14 is to be applied properly. If the proposals are not in accordance with the Development Plan, the NPPF clearly requires that consideration be given to whether the relevant policies are out of date, there being no automatic presumption applying in favour of the development unless the second part of paragraph 14 is met. Paragraph 14 is therefore not of substantive effect to the extent that the process to be followed before the presumption applies requires the exercise of judgment as to whether relevant policies with which the proposals conflict are “out of date”. In considering whether policies are “out of date”, that requires consideration of inconsistency as paragraphs 211 and 215 make clear.” [35]

Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin), Lindblom J

Nathalie Lieven QC appeared for the Secretary of State

“As Ms Lieven and Mr Smyth submit, neither paragraph 49 of the NPPF nor paragraph 14 prescribes the weight to be given to policies in a plan which are out of date. Neither of those paragraphs of the NPPF says that a development plan whose policies for the supply of housing are out of date should be given no weight, or minimal weight, or, indeed, any specific amount of weight. One can of course infer from paragraph 49 of the NPPF that in the Government's view the weight to be given to out of date policies “for the supply of housing” will normally be less, often considerably less, than the weight due to policies which provide fully for the requisite supply. As I have said, Mr Hill points, for example, to an expression used by Males J. in paragraph 20 of his judgment in Tewkesbury Borough Council – “little weight” – when referring to “relevant policies” that are “out of date”. In Grand Union Investments Ltd. (at paragraph 78) I endorsed a concession made by counsel for the defendant local planning authority that the weight to be given to the “policies for housing development” in its core strategy would, in the circumstances of that case, be “greatly reduced” by the absence of a five-year supply of housing land. However, the weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, or could it be, fixed in the case law of the Planning Court. It will vary according to the circumstances, including, for example, the extent to which the policies actually fall short of providing for the required five-year supply, and the prospect of development soon coming forward to make up the shortfall.

But in any event, however much weight the decision-maker gives to housing land supply policies that are out of date, the question he has to ask himself under paragraph 14 of the NPPF is whether, in the particular circumstances of the case before him, the harm associated with the development proposed “significantly and demonstrably” outweighs its benefit, or that there are specific policies in the NPPF which indicate that development should be restricted. That is the critical question. The presumption in favour of the grant of planning permission in paragraph 14 is not irrebuttable. And the absence of a five-year supply of housing land will not necessarily be conclusive in favour of the grant of planning permission. In this case it was not.

The reference in paragraph 14 of the NPPF to its policies being “taken as a whole” is important. It indicates that the decision-maker is required, when applying the presumption in favour of “sustainable development”, to consider every relevant policy in the NPPF. As paragraph 6 of the NPPF says, the policies in paragraphs 18 to 219, “taken as a whole”, constitute the Government's view of what “sustainable development” means in practice for the planning system. Those 202 paragraphs include the policy on neighbourhood plans in paragraphs 183 to 185, and the policy on determining applications where there is conflict with an extant neighbourhood plan, in paragraph 198. There is no justification for excluding those four paragraphs from the ambit of potentially relevant policy on “sustainable development” in the NPPF. In this case they clearly were relevant.” [71]-[73]

 

Phides Estates (Overseas) Limited v SSCLG [2015] EWHC 827 (Admin), Lindblom J

Richard Moules appeared for the Secretary of State

Paul Brown QC appeared for the Third Defendant

“Paragraph 14 of the NPPF prescribes an approach to decision-making when relevant policies, including “[relevant] policies for the supply of housing”, are “out-of-date”. It does not, however, prescribe the weight to be given to the ability of a particular proposal to reduce a shortfall in housing land supply as a benefit to be put in the balance against “any adverse effects”. This is a matter for the decision-maker to judge, and the court will not interfere with that judgment except on Wednesbury grounds. Naturally, the weight given to a proposal's benefit in increasing the supply of housing will vary from case to case. It will depend, for example, on the extent of the shortfall, how long the deficit is likely to persist, what steps the authority could readily take to reduce it, and how much of it the development would meet. So the decision-maker must establish not only whether there is a shortfall but also how big it is, and how significant. This will not be possible unless the relevant policies are correctly understood.” [60]


Calverton Parish Council v Nottingham City Council, Broxtowe Borough Council and Gedling Borough Council
[2015] EWHC 1078 (Admin), Jay J

Richard Turney appeared for the Claimant

“development which meets objectively assessed needs is presumptively sustainable, but I would add that the preposition “unless” is drawing attention to a policy constraint. That approach is reinforced by the footnote.” [15]

 

Forest of Dean District Council [2016] EWHC 421 (Admin), Coulson J

Gwion Lewis appeared for the Secretary of State

David Elvin QC appeared as senior counsel for the Second Defendant

“I think that it is appropriate to give the word “restricted” in Limb 2 of paragraph 14 a relatively wide meaning, to cover any situation where the NPPF indicates a policy that cuts across the underlying presumption in favour of development. The alternative is impractical. It is not a sensible approach to the NPPF for everyone involved in a planning application to comb through each of the policies referred to in footnote 9, to try and work out which paragraphs under each policy heading could be said to be unarguably restrictive of development, as opposed to those which, as a function of their wording, might be regarded as more nuanced.” [28]

“Paragraph 134 provides for a balancing exercise to be undertaken, between the “less than substantial harm” to the designated heritage asset, on the one hand, and the public benefits of the proposal, on the other. The presumption in favour of development is not referred to and does not apply. Paragraph 134 is thus a particular policy restricting development. Limb 2 of paragraph 14 applies.” ]26]

 

Cheshire East Borough Council [2016] EWHC 571 (Admin), Jay J

“In short, paragraph 14 is about process, not outcome. There is no circularity in the foregoing analysis, because if the adverse impacts do significantly and demonstrably outweigh the benefits (when assessed against the rest of the NPPF), then the proposal will not amount to sustainable development, and will be refused. Indeed, Mr Hunter’s argument seems to me to place an almost insurmountable hurdle against development being sustainable, because he fails to explain how the concept should be applied outside the scope of paragraph 14. It is a freewheeling exercise of discretion without parameters. Moreover, I agree with Mr Honey that it is difficult to understand on what basis paragraph 14 would have any practical utility if it only applied to cases where the development had already been found to be sustainable, and to my mind Mr Hunter’s “enhanced presumption” is a completely incoherent and unworkable concept, also one being nowhere to be found in the policy wording.” [26]

Jay J concluded that it was not necessary to conclude that development is sustainable before applying NPPF 14.

 

Suffolk Coastal DC v Hopkins Homes Ltd and SSCLG; Richborough Esetates Partnership LLP v Cheshire East BC and SSCLG [2016] EWCA Civ 168, Jackson, Vos and Lindblom LJJ

Christopher Lockhart-Mummery QC appeared for Hopkins Homes Ltd

“The purpose of [footnote 9], we believe, is to underscore the continuing relevance and importance of these NPPF policies where they apply. In the context of decision-taking, such policies will continue to be relevant even “where the development plan is absent, silent or relevant policies are out-of-date”. This does not mean that development plan policies that are out-of-date are rendered up-to-date by the continuing relevance of the restrictive policies to which the footnote refers. Both the restrictive policies of the NPPF, where they are relevant to a development control decision, and out-of-date policies in the development plan will continue to command such weight as the decision-maker reasonably finds they should have in the making of the decision. There is nothing illogical or difficult about this, as a matter of principle.” [39]

 

South Oxfordshire District Council [2016] EWHC 1173 (Admin), Gilbart J

“(1) While it is correct that the second and third of the three possible shortcomings identified in NPPF (the absence of a development plan, its silence, or its relevant policies having become out of date) are not the same, the latter two arise from the same issue, namely the degree of weight that can be attached to the policies in the development plan, which is of course essential given its status in s 70 TCPA 1990 and s 38(6) PCPA 2004.” [91] 

“93 (2) As I understand Bloor , Lindblom J was not seeking to suggest that the distinct provenances of the second and third shortcomings prevented overlap in their application in an individual case. For in the final analysis, the question for the decision maker is the same whether arriving at it via one route or the other, and comes in two parts: (1) does this development plan contain a body of policy relevant to the proposal being considered, and (2) is that body of policy sufficient to enable the development to be judged acceptable or unacceptable in principle? The first question involves an identification of the policies in question, and their correct interpretation; the second involves the exercise of planning judgment on the practical effect of that body of policy on the making of the decision in issue.  

94 (3) It follows also from the fact that the decision maker must make a planning judgment that, even if one is confined to arguing the “silence” test, that what matters is not simply whether the plan contains a policy which can be looked at to determine the question posed in Bloor at [50] and repeated in the last sentence of my paragraph [91] above: for its sufficiency at the time the decision is being made is an essential issue, and that involves the making of a qualitative planning judgment. I emphasise that the judgment to be made is at the time of the decision. A Development Plan may not have been “silent” when adopted, but has become so.  

95 (4) In the case of this Development Plan, the mechanism by which its housing requirement figures were intended to be translated into actual allocations was the DPD, which SODC had since abandoned. The question “how much housing does the Development Plan intend should be allocated in the period x to y” is not the same question as “where does the Plan say that that housing could or should be built?” In some cases, it can be the second question that matters. Whether it does so depends on the circumstances and is a matter for the planning judgment of the decision maker.” [93-95]

 

Wychavon DC [2016] EWHC 592 (Admin), Coulson J

“it is quite wrong to say that a presumption in favour of sustainable development does not exist in the NPPF outside para 14.” [41]

 

Trustees of the Baker Mill Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin), Holgate J

“Essentially “silence” is concerned with whether the development plan contains a policy or body of policy relevant to the proposal under consideration and sufficient to enable the acceptability of the proposal to be judged in principle. “Sufficiency” for that purpose does not require that the site be the subject of an allocation or a site-specific policy setting out restrictions on development. General development control policies may suffice to enable the decision-maker to say whether the proposal should be approved or refused in principle, subject to other material considerations.” [98] 

Having rejected the approach of Coulson J in Wychavon, Holgate J held “In my judgment, the presumption in favour of sustainable development is solely contained within paragraph 14 of the NPPF.” [116] 

“The first part of paragraph 14 of the NPPF deals with plan-making before moving on to decision-taking. For plan-making the presumption in favour of sustainable development means that (in summary) LPAs should positively seek opportunities to meet the development needs of their area and should meet objectively assessed needs (with flexibility to adapt to rapid change) unless (i) any adverse impacts of doing so would significantly and demonstrably outweigh the benefits (when assessed against the NPPF overall) or (ii) specific policies in the NPPF indicate that development should be restricted.” [118]

“The reliance placed upon the phrase “golden thread” in order to justify a wider presumption in favour of sustainable development is wholly misconceived. The term appears only once in the NPPF, that is in paragraph 14. The presumption is seen as a “golden thread running through plan-making and decision-taking” which then leads directly into the parts of paragraph 14 dealing with each of these two subjects in turn. As Lindblom J explained in [Crane] (at paragraph 73), paragraph 14 does require (in some circumstances) regard to be had to the NPPF “taken as a whole”, referring back to the concept of “sustainable development” explained in paragraph 6 of the NPPF. But it is one thing to define what may amount to sustainable development, it is another to define the circumstances in which a presumption in favour of sustainable development will arise. The Claimants’ reliance upon paragraph 6 of the NPPF and “the golden thread” erroneously conflates the two, without pointing to anything in the document which could possibly support that interpretation. The cross-reference in paragraph 14 to that definition of sustainable development does not alter the simple point that it is only that paragraph which identifies the circumstances in which the presumption arises (together with the deeming provision in paragraph 49 which itself only has the effect of taking the decision-maker to the presumption in paragraph 14).” [126] 

“…It is plain from the above analysis and from authorities such as [Crane] and [the Court of Appeal’s decision in Suffolk Coastal District Council] that paragraph 14 of the NPPF is not simply an explanation of the effect of the presumption to which it refers. It also defines the circumstances in which the presumption in favour of sustainable development applies, both for the two limbs applicable to plan-making and the two limbs applicable to decision-taking. [The Secretary of State’s] analysis of the NPPF, which I accept, relies upon the substance of the relevant provisions and does not depend, or place too much emphasis upon, the use of the word “means” in paragraph 14.” [131]

 

Cawrey Limited [2016] EWHC 1198 (Admin), Gilbart J

Tim Buley appeared for the Secretary of State

“NPPF undoubtedly recognises the intrinsic character of the countryside as a core principle. The fact that paragraph [109] may recognise that some has a value worthy of designation for the quality of its landscape does not thereby imply that the loss of undesignated countryside is not of itself capable of being harmful in the planning balance, and there is nothing in Stroud DC v SSCLG [2015] EWHC 488 per Ouseley J or in Cheshire East BC v SSCLG [2016] EWHC 694 per Patterson J which suggests otherwise. Insofar as Kenneth Parker J in Colman v SSCLG may be interpreted as suggesting that such protection was no longer given by NPPF, I respectfully disagree with him. For it would be very odd indeed if the core principle at paragraph [17] of NPPF of “recognising the intrinsic beauty and character of the countryside” was to be taken as only applying to those areas with a designation. Undesignated areas – “ordinary countryside” as per Ouseley J in Stroud DC — may not justify the same level of protection, but NPPF, properly read, cannot be interpreted as removing it altogether. Of course if paragraph [49] applies (which it did not here) then the situation may be very different in NPPF terms.” [49]

  

R (Leckhampton Green Land Action Group Ltd) v Tewkesbury BC [2017] EWHC 198 (Admin), Holgate J

“I respectfully agree with Coulson J in the Forest of Dean case that the two indents, or exceptions to the presumption in favour of sustainable development, are alternatives. In other words, the satisfaction of either one is sufficient to disapply the presumption. I also agree with him that if the decision-maker considers that the application of paragraph 134 does not tell against the proposed development, then the developer is entitled to the benefit of the tilted balance contained in the first indent when the overall balance weighing all factors comes to be struck…” [47]

 

Watermead Parish Council v Aylesbury Vale District Council [2017] EWCA Civ 152, Patten and Lindblom LJJ

David Elvin QC and Alex Goodman appeared for the Interested Party

“Does the exception for “specific policies” in the NPPF which “indicate development should be restricted” simply require a relevant restrictive policy to be in play if the presumption is to be shut out? Or does it require the restrictive policy, once identified, actually to be applied before the decision-maker can ascertain whether the presumption is available to the proposal being considered? How is the presumption intended to work? This is an issue of some significance for the operation of the planning system in England.” [45]

Lindblom LJ however found that this question did not need to be resolved in the appeal, and preferred to leave it (dealing as it was with an important matter of interpretation of national planning policy) to a case in which central government was a party.

 

Keith Langmead Ltd [2017] EWHC 788 (Admin), Lang J

John Litton QC and Graeme Keen appeared for the Claimant

Stephen Whale appeared for the Secretary of State

Lang J accepted that the Secretary of State’s approach to NPPF 14, which followed that of jay J in Cheshire East [2016] EWHC 571 (Admin), “reflected the current prevailing interpretation of NPPF 14, and that the Secretary of State's disagreement with the Inspector's interpretation was supported by recent authorities” [34].

 

Hopkins Homes Ltd [2017] UKSC 37, Lord Neuberger of Abbotsbury PSC, Lord Clarke of Stone-cum-Ebony, Lord Carnwath, Lord Hodge JJSC, Lord Gill

Christopher Lockhart-Mummery QC and Zack Simons appeared for Hopkins Homes Ltd

“The argument, here and below, has concentrated on the meaning of paragraph 49, rather than paragraph 14 and the interaction between the two. However, since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the “tilted balance” under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are “significantly and demonstrably” outweighed by the adverse effects, or where “specific policies” indicate otherwise.” [54] (Lord Carnwath JSC) 

“…it is not necessary to label other policies as “out-of-date” merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of planning judgment for the decision-maker. Restrictive policies in the development plan (specific or not) are relevant, but their weight will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the “tilted balance”.” [56] (Lord Carnwath JSC)

 

Barwood Strategic Land II LLP v East Staffordshire BC [2017] EWCA Civ, Gross, Underhill and Lindblom LJJ

Gwion Lewis appeared for the Secretary of State.

“The operation of the “tilted balance” involves the two specific exceptions relevant to a case in which “the development plan is absent, silent or relevant policies are out-of-date”. As the Secretary of State has expressly acknowledged and emphasized in this appeal, the second of those two exceptions does not “shut out” the “presumption in favour of sustainable development” simply because any of the “specific policies” – of which examples are given in footnote 9 – is in play (see paragraph 45 of my judgment in Watermead Parish Council v Crematoria Management Ltd. [2017] EWCA Civ 152). Once identified, the specific policy in question has to be applied – and, where that specific policy requires it, planning judgment exercised – before the decision-maker can ascertain whether the “presumption in favour of sustainable development” is available to the proposal in hand…” [22(2)]

“(1) The “presumption in favour of sustainable development” in the NPPF, unlike the presumption in favour of the development plan in section 38(6) of the 2004 Act, is not a statutory presumption. It is only a presumption of planning policy, which requires of a planning decision-maker an exercise of planning judgment within the balancing exercise mandated under section 38(6) and undertaken in accordance with the principles in the relevant case law (see paragraph 13 above).

(2) Paragraph 14 of the NPPF describes what the “presumption in favour of sustainable development” means, explaining in clear and complete terms the circumstances in which, and the way in which, it is intended to operate. The presumption, as described in paragraph 14, is the so-called “golden thread running through both plan-making and decision-taking”. There is no other “presumption in favour of sustainable development” in the NPPF, either explicit or implicit, and no other “golden thread”.

(3) When the section 38(6) duty is lawfully performed, a development which does not earn the “presumption in favour of sustainable development” – and does not, therefore, have the benefit of the “tilted balance” in its favour – may still merit the grant of planning permission. On the other hand, a development which does have the benefit of the “tilted balance” may still be found unacceptable, and planning permission for it refused (see paragraph 22 above). This is the territory of planning judgment, where the court will not go except to apply the relevant principles of public law (see paragraphs 8 and 9 above). The “presumption in favour of sustainable development” is not irrebuttable. Thus, in a case where a proposal for the development of housing is in conflict with a local plan whose policies for the supply of housing are out of date, the decision-maker is left to judge, in the particular circumstances of the case in hand, how much weight should be given to that conflict. The absence of a five-year supply of housing land will not necessarily be conclusive in favour of the grant of planning permission. This is not a matter of law. It is a matter of planning judgment (see paragraphs 70 to 74 of the judgment in Crane).” [35]

 


NPPF 16

 

R (Larkfleet Homes) v Rutland County Council [2014] EWHC 4095 (Admin), Collins J

Charles Banner and Heather Sargent appeared for the Claimant

“Mr Banner’s contention that [paragraphs 15-16, 184-185] in the NPPF show that housing policies are strategic in nature and so cannot be dealt with in a [Neighbourhood Development Plan] is in my judgment clearly wrong. The requirement in paragraph 16 is for NDPs to “support the strategic development needs set out in the local plan”. It does not say that housing policies are to be regarded as strategic, merely that the strategic elements in any housing policy must be applied in a NDP. Thus the reference to development being ‘outside the strategic elements’ simply indicates that strategy in the local plan must be applied in any NDP. Paragraphs 184 and 185 confirm that this is what is intended.”

 

NPPF 17 

 

Dartford Borough Council [2017] EWCA Civ 141 Gloster and Lewison LJJ

Charles Banner appeared for the Secretary of State

There is no conflict between the core principles relating to the protection of the Green Belt and the reuse of previously developed land; these principles are worked out in the more detailed policies relating to the Green Belt [10]-[11].

“the NPPF accommodates the definition of previously developed land within the general policy about development in the Green Belt. If a new building is a partial redevelopment of a previously developed site it is not to be regarded as inappropriate redevelopment in the Green Belt, provided that it has no greater impact on the openness of the Green Belt than the existing development. The proviso also means that the encouragement of development on brownfield land is not, at least in the Green Belt, unqualified. So any possible tension is resolved.” [13]