Monthly Archives: July 2017

NPPF Limitations on presumption in favour of sustainable development

Paragraph 14 of the National Planning Policy Framework (“NPPF”) says:

“14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.

For plan-making this means that:

• local planning authorities should positively seek opportunities to meet the development needs of their area;

• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole;

– specific policies in this Framework indicate development should be restricted.

For decision-taking this means:

• approving development proposals that accord with the development plan without delay; and

• where the development plan is absent, silent or relevant policies are out-of¬date, granting permission

unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.”

In Wychavon District Council [2016] Coulson J. had said the presumption in favour of sustainable development would apply whether or not the development plan was silent or absent, or whether or not the relevant policies were out-of¬date. To think otherwise would be an important limitation on the ‘golden thread’. Had the NPPF intended this, it would have said so in the clearest terms.

However in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] Jay J. recognized that the Government’s policy as to the striking of the relevant balance was to be found in paragraph 14 of the NPPF, not elsewhere in the NPPF. He could not see “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 …paragraph 14 “is the driver to correct decision-taking.”

Wychavon has now been overruled by the Court of Appeal in Barwood Strategic Land II LLP -v- East Staffordshire Borough Council and another [2017].

The Court said the inspector’s decision had been based on the Wychavon misconception:

“that a proposal which does not ….gain the “presumption in favour of sustainable development” under the policy in paragraph 14 of the NPPF [here because the Council could actually demonstrate that there was a 5 year housing supply] can nevertheless acquire it elsewhere in the NPPF. In stating ……that “the presumption in favour of sustainable development is a golden thread that runs throughout [the NPPF]” and that “[as] a result, where a proposal is contrary to the development plan this presumption is a material consideration that should be taken into account”, [the inspector] was accepting that there was a wider “presumption in favour of sustainable development” beyond that described in paragraph 14 of the NPPF….”

There was not.

The decision means that the presumption in favour of sustainable development can only apply in the circumstances expressly prescribed by the NPPF at paragraph 14 and there being no other relevant deficiency in the development plan e.g. being “absent, silent or out of date” the inspector’s decision to grant planning permission had to be quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Supreme Court on sustainable development and the housing supply

Paragraph 49 of the National Planning Policy Framework (“NPPF”) says:

Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.

Paragraph 14 mentions the presumption in favour of sustainable development. It then says this entails for determinations:

approving development proposals that accord with the development plan without delay; and

where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.

When local authorities do not have a 5 year housing land supply how do paragraphs 14 and 49 of the NPPF apply?

This was the position in the Supreme Court case of Suffolk Coastal District Council -v- Hopkins Homes Ltd & Anor [2017].

The Supreme Court applied a 2 stage process.

Firstly you had to apply Paragraph 49.

“Policies for the supply of housing” had to be applied narrowly. Paragraph 49 only considered “housing supply policies” “out of date”. It did not to extend to presume out date other policies that merely “affected” housing supply.

It was necessary to assess whether in fact there was a 5 year deliverable land supply.

Whatever policies caused the lack of 5 year supply such a lack, if it existed, would invoke paragraph 14.

Secondly, if Paragraph 14 applied, the application should receive planning permission unless:

– adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole; or

– specific policies in the NPPF indicated that development should be restricted. These are not only restrictive policies actually in the NPPF. They could include green belt and other development plan policies merely referred to in the NPPF.

This is an issue of planning judgment. It is for the decision maker to decide how much weight it to be given to other policies in the development plan.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.