26 July 2017

Hot on the heels of the Supreme Court decision in the Suffolk Coastal case, the Court of Appeal has further clarified the operation of paragraph 14 of the National Planning Policy Framework (NPPF) and the scope of the presumption in favour of sustainable development in Barwood Strategic Land II LLP –v- East Staffordshire BC and SSCLG [2017] EWCA Civ 893.

What is the scope of the presumption in favour of sustainable development?

The main issue before the court was whether or not the planning inspector had been mistaken on the scope of the presumption in favour of sustainable development. The reason it had come before the Court of Appeal was because the judge in the lower court acknowledged that there had been a number of conflicting High Court decisions on when the presumption applied.

In fact, on the 16 March 2016 there were two decisions issued which accepted opposing interpretations of when the presumption applied.

In Wychavon DC v SSCLG [2016] EWHC 592, the court was persuaded that the so called "golden thread" of the presumption existed outside the scope of paragraph 14 and that where there was a conflict between a development proposal and a development plan then the presumption in favour of sustainable development was a “very important material consideration to be weighed against the priority of the development plan”.

In Cheshire East BC v SSCLG [2016] EWHC 571 the court took a different view and rejected the notion of a “freewheeling exercise of discretion without parameters”. It considered that paragraph 14 "teaches the decision maker how to decide whether the proposal, if approved, would constitute sustainable development" rather than being a standalone concept which gave support to a development against the development plan where that development conformed to the policies in the NPPF.

In Barwood, the inspector had concluded that he was considering the proposed development in the context of an up to date development plan. Specific polices sought to restrict the development proposed by Barwood. Perhaps most importantly, the plan identified a five year housing land supply and the provisions of paragraph 14 did not apply. However, he stated the NPPF "is an important material consideration and the appeal scheme needs to be considered in the context of its presumption in favour of sustainable development”. He went on to consider that the benefits of the scheme outweighed the limited harm that would be caused despite the clear conflict with the local plan, and approved the scheme.

In the High Court the Cheshire approach was favoured and the appeal was quashed.

The Court of Appeal also preferred the approach taken in the Cheshire case and confirmed that the presumption in favour of sustainable development was confined to operating within the remit of paragraph 14. The NPPF did not contain a general presumption in favour of sustainable development which could be applied in the decision making process where paragraph 14 was not engaged, to set against the statutory presumption in favour of the development plan in Section 38(6) of the Planning and Compulsory Purchase Act 2004.

A flexible process

The Court of Appeal also affirmed that "excessive legalism" had no place in the planning system and the courts should adopt, if possible, a simple approach, resisting over-complication of "concepts that are basically simple”. The duties on a decision maker in the planning system made the process flexible, rather than rigid or formulaic and involved exercising planning judgement by applying policy to the facts of the particular case. This echoes the Supreme Court’s decision in the Suffolk Coastal case.

What does this mean for local planning authorities and developers?

For the local planning authority this case highlights the need to follow the statutory presumptions in Section 38(6) of the 2004 Act but also, more importantly, why it is necessary to have in place an up to date development plan to secure proper planning of its area. For the developer, the case confirms that the NPPF does not provide a panacea to overcome obstacles within an up to date and relevant development plan.

For more information, please contact Gary Soloman or David Kerfoot.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

Subscribe to news and insight

Planning and Compulsory Purchase

Our market leading planning lawyers provide unrivalled planning law expertise and key insight into a range of industry sectors.
View expertise