Fri, 01 Aug 2014
. . . of Dartford Borough Council v Secretary of State for Communities and Local Government  EWHC 2636 (Admin)
1. On 24 June 2014 Mrs Justice Patterson handed down judgment in the case of Dartford Borough Council. The case concerned a challenge under s288 of the Town and Country Planning Act 1990 for an order quashing the decision of Planning Inspector O’Rourke allowing an appeal by developers Landhold Capital Limited and granting outline permission for up to 40 dwellings, together with public open space, access and landscaping at Greenhithe.
2. The challenge was brought by the Council on a number of grounds, one of which centred on the approach of the Inspector to ‘sustainable development’. The Claimant argued that before deciding whether paragraph 14 of the Framework was engaged, the Inspector ought to have made a preliminary finding on sustainability. This argument relied heavily upon the judgement of Lang J in William Davis Ltd & Anor v Secretary of State for Communities and Local Governments  EWHC 3058 (Admin). In that case Lang J stated the following:
"37. In my judgment, the Inspector and the Secretary of State directed themselves correctly by asking the question whether the proposed development was "sustainable development". At the Inquiry, the Claimants did not dissent from the Inspector's analysis that the fourth main issue was "whether the appeal scheme represents sustainable development, to which the Framework's "presumption in favour" should apply" (paragraph 317). In their written submissions to the Inspector, the Claimants expressly referred to this question, I accept Mr Maurici's submission that paragraph 14 NPPF only applies to a scheme which has been found to be sustainable development. It would be contrary to the fundamental principles of NPPF if the presumption in favour of development in paragraph 14 applied equally to sustainable and non-sustainable development."
3. Indeed, over the past few months, this statement has been widely used, mostly by local authorities, to argue that paragraph 14 ought to be read as importing a two-stage test. First one should decide whether the development is sustainable and only if the answer is ‘yes’ should one go on to consider whether the adverse affects significantly and demonstrably outweigh the benefits of the scheme. In response, parties, often developers, have argued that a two-stage interpretation is illogical and is not supported by the wording of paragraph 14 itself, which states:
‘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 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 impacs 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.’
4. Dartford therefore presented an opportunity for the High Court to look again at paragraph 14 and how Lang J’s judgment in William Davis ought to be interpreted. In her carefully reasoned judgment Mrs Justice Patterson stated:
’52. In my judgment, 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.
53. As has been said repeatedly, an Inspector is not writing a examination paper and a decision must be read in good faith, see South Somerset District Council v Secretary of State for Environment  1 PLR 80 at 83(e) to(f). The court should employ a straightforward down to earth reading of a decision letter without excessive legalism, (see Clarke Homes v Secretary of State for the Environment  6 PNCR 263, at paragraph 272.
54. In my judgment the claimant's approach is excessively legalistic. When the decision letter is read as a whole it is clear that the Inspector reached an overall conclusion, having evaluated the three aspects of sustainable development, that the positive attributes of the development outweighed the negative. That is what is required to reach an eventual judgment on the sustainability of the development proposal. As was recognised in the case of William Davis (supra) at paragraph 38 the ultimate decision on sustainability is one of planning judgment. 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.’
5. Clearly, Patterson J has been careful not to disagree with Lang J, however she has cautioned against ‘elevating the dicta in William Davis .. into a formulaic approach.’ What Patterson J has not done however is to offer a definitive solution for how paragraph 14 ought to be applied. The judgment states rather opaquely ‘…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.’ Having rejected a formulaic two stage test, however, Patterson J has arguably still left open the question of how a decision maker is to ensure that development which passes the paragraph 14 presumption test meets the 3-part definition of sustainable development within paragraph 7 as the judgment implies the presumption test in paragraph 14 itself is not definitive of whether a development is to be considered sustainable or not.
6. It should be noted nevertheless that the Secretary of State has been quick to seek to close any such potential interpretive 'gap'. Before the transcript of the judgment was publicly available, the Secretary of State referred to Dartford in a decision letter dated 2 July 2014. In that decision the he granted permission for two developments in conjoined appeals at Droitwich Spa.1 In commenting upon arguments relating to the interpretation of paragraph 14 and William Davis the decision letter states:
‘The Secretary of State also notes the recent decision in Dartford Borough Council v. Secretary of State for Communities and Local Government and Landhold Capital Limited where Mrs Justice Patterson rejected elevating William Davis into a formulaic sequential approach to paragraph 14 of the Framework. Like the Inspector, the Secretary of State finds the relevant policies for the supply of housing are out of date… and therefore the presumption applies, and that the evidence…demonstrates that the Appeal A scheme is sustainable in terms of economic, environmental and social benefits.’
7. To conclude, the judgment in Dartford assists planning professionals in being able to state now that paragraph 14 of the Framework does not import a formulaic two stage test, and that the case of William Davis ought not to be interpreted as stating otherwise. However, Dartford has not in reality offered up a definitive answer for exactly how paragraph 14 ought to be applied by decision makers. This will, it is expected, leave scope for further argument.
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