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7th December, 2016 by Chris May
There are many recent examples where appeal inspectors and local planning authorities have exercised their respective planning judgements to conclude that development (in most cases, residential development) is sustainable and therefore benefits from the presumption in its favour within the National Planning Policy Framework notwithstanding that the development is contrary to the relevant policies of an up-to-date Local Plan. Following Green J’s judgement in East Staffordshire Borough Council v Secretary of State for Communities and Local Government and another  EWHC 2973 (Admin) further examples are now unlikely, at least unless the judgment is overturned in the Court of Appeal. There has been much discussion about the implications of this decision within the legal press and this article is aimed at practical implications rather than the legal minutiae.
The case concerned the grant of planning permission for 150 dwellings on appeal where the Borough Council and appellant agreed that the proposed development was contrary to the strategic policies of the up-to-date Local Plan (and there was a 5 year supply of housing land) which was accepted by the Inspector. However, the Inspector concluded that the proposed development accorded with the three dimensions of sustainable development identified in the Framework at paragraph 7 and so represented sustainable development as defined in the Framework. The Inspector then concluded that the Framework’s presumption in favour of sustainable development was to be given such weight as to rebut the presumption of refusal arising from the conflict with the Local Plan.
Put simply, the Inspector concluded the following:
The Court held that the Inspector misdirected himself as to the application of the Framework, especially paragraph 14, in that development which does not comply with an up-to-date Local Plan cannot represent sustainable development within the terms of paragraph 14 and so cannot benefit from a presumption in favour of sustainable development within the Framework. Whilst there is a discretion to grant planning permission for schemes which are in conflict with the development plan and do not benefit from the presumption in favour of sustainable development, such discretion is narrow. Green J also held that the Inspector erred in a failure to properly set out the planning balancing exercise undertaken by neglecting to analyse the “cons” inherent in conflict with the Local Plan.
Until, and unless, the judgment is overturned in the Court of Appeal (permission to appeal was granted by Green J), the implications for development are significant; it means that development which is in conflict with an up-to-date development plan will be concluded not to be sustainable development within the terms of paragraph 14 of the Framework and therefore there can be no presumption in favour of granting planning permission; in fact paragraph 12 indicates it should be refused. Planning permission could still be granted but only “as an exception to the norm where there exists objective and substantial reasons which can be readily demonstrated to a high degree of probative value and which takes into account the particular reasons why a development has been found to collide with the Local Plan”. Unfortunately, Green J did not need to consider what would constitute exceptional circumstances but acknowledged that, provided that the decision maker does not misdirect himself/herself as to the principles, there remains the legitimate exercise of judgement.
The judgment clearly represents a substantial reduction in the prospects of securing planning permission for development which is not consistent with an up to date Local Plan and it may no longer be possible to argue that planning permission should be granted for development which is “sustainable” and therefore benefits from support in the Framework even though it may conflict with the relevant policies of the development plan.
It is likely that more focus will now be given to establishing that the relevant policies are absent, silent or out-of-date to ensure that development which conflicts with the development plan can be considered sustainable in the terms of the Framework. Clearly, housing land supply is going to continue to be one of the most productive ways of establishing that relevant housing policies are out of date and arguments as to consistency with the Framework of policies are also going to feature heavily. It should be noted that the Court of Appeal has recently clarified in Gladman Developments Ltd v Daventry District Council and Secretary of State for Communities and Local Government  EWCA Civ 1146 that policies are not out-of-date simply because they are old and originally related to a plan period long ended but it is always necessary for the decision maker to assess the consistency of those policies with the Framework as set out in paragraph 215 of the Framework.
If it is not possible to establish that the relevant policies are absent, silent or out-of-date, arguments are likely on whether the development complies with the development plan as a whole notwithstanding identified conflicts with specific policies.
In the event that the proposed development does not comply with the relevant policies of the development plan, read as a whole, and those policies are up-to-date, the propsects of securing permission for the development look bleak. The only option would appear to be establishing that there are material considerations which provide “objective and substantial” reasons for outweighing the conflict with the Local Plan and the presumption in paragraphs 14, read with paragraph 12, of the Framework to refuse planning permission. It is vital that the decision maker in those circumstances acknowledges the “double” negative presumption against development and properly explains how the “pros” outweigh the “cons” which must include a proper analysis of conflict with the policies of the development plan. Such a task looks exceptionally difficult.
It should be noted that the conclusions of Green J are inconsistent with the judgment of Coulson J in Wychavon District Council v Secretary of State for Communities and Local Government  EWHC 593 (Admin) and clarification in the Court of Appeal is eagerly awaited. The Secretary of State did not contest the claim before the High Court and his position was that paragraph 14 of the Framework provides no support for development which is inconsistent with an up-to-date development plan. Such an approach by the Secretary of State was wholly criticised as “unacceptable” by Holgate J in the judgement issued on 25 November 2016 in Trustees of the Barker Mill Estates v Test Valley Borough Council and the Secretary of State for Communities and Local Government  EWHC 3028 (Admin). Holgate J goes on to conclude that Coulson J reached an incorrect conclusion on a presumption in favour of sustainable development being outside of paragraph 14 and to criticise the “selective citation of judicial authority” both before Coulson J in Wychavon and to the Inspector in East Staffordshire case. Holgate J’s conclusions on the application of paragraph 14 of the Framework in paragraphs 108 to 143 of the judgment are robust and forthright, and certainly worth reviewing. He categorically comes down on the side of Green J.
If the Court of Appeal overturns Green J’s conclusions (and those of Holgate J in Trustees of the Barker Mill Estates), then it will be interesting to see whether the Secretary of State responds with any proposed policy revisions.