There have been 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 a 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 and the local planning authority can demonstrate a five year supply of housing land. In an earlier article, Chris May considered Green J's judgement in East Staffordshire Borough Council v Secretary of State for Communities and Local Government and another  EWHC 2973 (Admin). That judgement has now been considered in the Court of Appeal and once again, there has been much discussion about the implications of this decision within the legal press.
By way of reminder, 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, both of which were 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 Local Plan was recently adopted and policies regarding the location of housing and the protection of the countryside were up-to-date;
- The proposed development was contrary to the Local Plan and refusal was presumed unless material considerations indicated otherwise;
- The Framework and the presumption in favour of sustainable development was a material consideration;
- The proposed development in his judgement complied with the definition of sustainable development set out in the Framework;
- The proposed development accordingly took support from the Framework;
- The support from the Framework in his judgement outweighed the conflict with the Local Plan and therefore this material consideration indicated planning permission should be granted.
Green J 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.
The Court of Appeal dismissed the appeal by Barwood. It is very important to note that on the face of the judgement, counsel for Barwood did not ultimately try and argue that the presumption in favour of sustainable development was of general application regardless of whether there was a conflict with an up-to-date Local Plan or the local planning authority could demonstrate that there was a five year supply of housing land. One can only guess why this argument was not run but it seems sensible to assume that Barwood did not ultimately consider that the argument had any merit. That said, Lindblom LJ did consider in some detail when the presumption applies.
The judgement spends some time summarising the position following the Supreme Court decision in the Suffolk Coastal District Council v Hopkins Homes Ltd  UKSC 36, etc case and reinforces a number of areas of settled law including:
- the primacy of the development plan and the presumption in favour of the development plan unless material considerations indicate otherwise set out in section 38(6);
- policies are not statutory or contractual provisions and should not be construed as such. The proper interpretation of planning policy is a matter of law for the court but application is for the decision-maker;
- the Framework is a material planning consideration but does not have the force of statute and in fact reinforces the presumption in favour of the development plan. However, because it is Government policy, it is likely to command significant weight but the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense;
- the key question is not how to define individual policies but whether there is a five year supply of housing land. Any shortfall is enough to trigger the operation of second part of paragraph 14 and the "tilted balance". Paragraph 14 sets out how the presumption in favour of sustainable development operates when a local planning authority is unable to demonstrate a five year supply of deliverable housing sites but also the opposite case, where there is an up-to-date Local Plan and it is able to demonstrate the necessary five-year supply.
Having quoted the salient parts of the inspector's decision, Lindblom LJ then went on to consider conflicting judgements in the Planning Court. Coulson J in the Wychavon District Council case concluded that "it is quite wrong to say that a presumption in favour of sustainable development does not exist in the NPPF outside paragraph 14". In contrast Jay J concluded in Cheshire East Borough Council v Secretary of State for Communities and Local Government, Renew Land Developments Ltd  EWHC 571 (Admin) that the concept of "sustainable development" involved striking a balance between different considerations some of which favour the grant of planning permission and some which do not and the Government's policy in this regard is to be found in paragraph 14. Jay J rejected the notion of a "freewheeling exercise of discretion without parameters". Finally, Holgate J's conclusions in the Trustees of the Barker Mill Estates case were considered. He was clear that "the presumption in favour of sustainable development is solely contained in paragraph 14 of the NPPF".
Lindblom LJ accepted Holgate J's analysis and concluded:
- The "presumption in favour of sustainable development" is not a statutory presumption. It requires a planning decision-maker to exercise planning judgement within the balancing exercise mandated by section 38(6).
- Paragraph 14 describes what the presumption means in clear and complete terms and the circumstances in which it is to operate. It is the presumption in paragraph 14 which is the so-called "golden thread running through plan-making and decision-taking". There is no other such presumption in the Framework.
- When the duty in section 38(6) is lawfully performed a development which does not earn the presumption or the "tilted balance" in its favour may still merit a grant of planning permission. This is the territory of planning judgement. In the absence of a five year supply of housing land this may lead to the presumption or the "tilted balance" in its favour but will not necessarily be conclusive in favour of granting permission. Again, this will be a matter of planning judgment.
Counsel for Barwood did not try and argue that the conclusions of Jay J and Holgate J were incorrect or to defend Coulson J's analysis. Instead he argued that on a fair reading of the inspector's decision he had done what he was required to do by carrying out his duty under section 38(6). He argued that the inspector had in fact accepted that the presumption was not engaged and that in finding that the development was sustainable, he had simply carried out a straight balance of harm against benefit. That was decisively rejected by Lindblom LJ. He concluded that the inspector had not left out of account the wider "presumption in favour of sustainable development". He had explicitly taken it into account and did so as if it were a material consideration weighing in favour of the proposal and in doing so he fell into error. Lindblom LJ rejected submissions that the court's discretion should nevertheless be exercised not to quash the decision as it was inevitable that even if the inspector had not erred in law, planning permission would still have been granted. Lindblom LJ concluded that the proposal was clearly contrary to three policies in the recently adopted Local Plan and was therefore contrary to the statutory presumption in favour of the development plan. In addition, the inspector had made a material error of law and had he not made that error it is possible that he would not have come to the same conclusion. He could not conclude that the decision would inevitably have been the same.
The implications for development are significant; it means that development which is in conflict with an up-to-date development plan and where the local planning authority can demonstrate a five-year supply will be concluded not to benefit from the presumption in favour of 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 unless material considerations indicate otherwise. Planning permission could still be granted but only to use the words in Green J's judgement in the Planning Court "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, neither Green J nor Lindblom LJ needed to consider what would constitute exceptional circumstances but acknowledged that, provided that the decision maker does not misdirect himself/herself as to the principles, this remains the legitimate exercise of judgement.
The judgement 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 where the local planning authority can demonstrate a five-year supply. It will continue to be difficult 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.
More focus will now need to 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 to benefit from the presumption in favour of sustainable development 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.
If it is not possible to establish that the relevant policies are absent, silent or out-of-date, arguments are likely to be 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 prospects 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 paragraph 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 challenging and it will be crucial for developers to bolster the planning benefits of a scheme to maximise prospects of securing approval.