Sustainable development: what does it mean and when is there a presumption in favour of it?

SUSTAINABLE DEVELOPMENT: WHAT DOES IT MEAN AND WHEN IS THERE A PRESUMPTION IN FAVOUR OF IT?

The Court of Appeal today handed down judgment in Barwood Strategic Land LLP v East Staffordshire Borough Council and SSCLG [2017]  EWCA Civ 893. [1]

Case law junkies will no doubt recall that this was Barwood’s appeal against the decision of Green J in the High Court, who ruled that there is no presumption in favour of sustainable development (“PIFSD”) in cases were NPPF paragraph 14 is not engaged. The dispute over whether the NPPF (when looked at as a whole) contains a general presumption in favour of sustainable development, or whether such a presumption arises if and only if the development plan is absent, silent or relevant policies are out of date (NPPF14), has been rumbling on ever since the decision of Coulson J in Wychavon DC v SSCLG [2016] EWHC 592 (Admin).

In the Wychavon case, Coulson J had held that there was no reason to restrict the presumption to those cases falling within paragraph 14, given that the PIFSD was expressed to be the “golden thread” running through the NPPF. He ruled that the position was simple: if there was a conflict between a proposal and the development plan, the policies in the NPPF, including the PIFS, “are important material considerations to be weighed against the [statutory] priority of the development plan” (para. 31, internal para. 44).

In Barwood the inspector had relied upon the Wychavon case in granting planning permission for 150 houses contrary to a recently adopted, up to date development plan and despite the existence of a 5 year housing land supply. Green J quashed the permission, saying that he disagreed with the Wychavon approach. Shortly after Green J’s judgment in the High Court, Holgate J also rejected the Wychavon approach (in Trustees of the Barker Mills Estates v Test Valley Borough Council and SSCLG [2016] EWHC 3028 (Admin).

The Court of Appeal’s judgment has now definitively put the matter to rest, overruling the Wychavon case:

“Paragraph 14 of the NPPF describes what the “presumption in favour of sustainable development” means, explaining in clear and complete terms the circumstances in which, and the way in which, it is intended to operate. The presumption, as described in paragraph 14, is the so-called “golden thread running through both the plan-making and decision-taking.” There is no other “presumption in favour of sustainable development” in the NPPF, either explicit or implicit, and no other “golden thread”.” (per Lindblom LJ, para. 35(2)).

Whilst this is of course an important and welcome clarification of how the central concept in the Framework is to be applied, the judgment is equally important in making clear that the concept of “sustainable development” (as opposed to the PIFSD) does exist outside of NPPF14. The judgment does this by endorsing the judgment of Holgate J in Trustees, where he stated that it was one thing to define what may amount to sustainable development and another to define the circumstances in which a presumption arises in favour of sustainable development, and that the two should not be conflated (para. 34, internal para. 126, para. 35, and para. 50).

This is a highly important distinction, because Green J’s judgment had in parts given the impression that a proposal that was contrary to an up to date development plan was incapable, as a matter of definition, of constituting sustainable development as defined in the Framework. This was in response to a submission made by the Secretary of State, a submission that he declined to repeat in the Court of Appeal.

In quashing the inspector’s decision for its reliance on the Wychavon case, it is very important to emphasise what the Court of Appeal did not say in light of the way that Green J had expressed his conclusions. The Court did not (a) suggest that it was not possible to assess whether a development was sustainable within the meaning of the NPPF in a case in which paragraph 14 was not engaged; (b) seek to disagree with the Inspector’s conclusion that the proposal was indeed sustainable when measured against the three dimensions of sustainability or (c) state that this was not a material consideration relevant to the question of whether permission should be granted contrary to the development plan. Rather, the Court quashed the inspector’s decision on the narrow (albeit important) basis that having decided that the proposal constituted sustainable development, the inspector wrongly applied a presumption in its favour, rather than asking whether its sustainability (as a material consideration) was sufficient to outweigh the conflict with the development plan (para. 48). In short, he had committed the error against which Holgate J has now warned in the Trustees case, namely he had conflated a finding of sustainable development with a presumption in its favour.

Having disposed of the appeal on this narrow basis, the Court said it was not necessary to grapple with Green J’s suggestion that the discretion to grant permission contrary to an up to date plan was “exceptional” (para.49). However, there can be little doubt that it did not agree with the “exceptional discretion” concept. Firstly, it went out of its way to emphasise the role of planning judgment and the wide ambit of the discretion under s.38(6) of the 2004 Act (“The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion”) (para. 50). Secondly, it expressly endorsed the observations of Holgate J in Trustees at para. 143 of that judgment, in which Holgate J said “I see no necessity or justification for decision-makers in the field … to be concerned with this novel concept of “residual discretion”, or whether it is in truth “residual”, or the ambit of any such discretion”.

Finally, the judgment of the Court of Appeal is extremely important because it confirms that the inspector in the Barwood case could lawfully have decided that because the development was sustainable when measured against the three dimensions, this was sufficient to outweigh the presumption in favour of the development plan (paras. 39 and 52). The reason the decision had to be quashed was because the inspector had assumed that a finding of sustainability gave rise to a presumption in favour of permission, when what he should have done was to decide as a matter of planning judgment whether sustainability as measured against the Framework was a material consideration of sufficient weight to rebut the presumption in favour of the development plan (see para. 52). It was submitted on behalf of Barwood that the latter exercise was in essence what the inspector had carried out, despite his use of the phrase PIFSD (para. 39). The Court of Appeal did not say that such an approach would have been unlawful; simply that it was not what the inspector had done (para. 40). It was this which distinguished the case from the Secretary of State’s decision in Watery Lane, Lichfield, where the Secretary of State had not used the expression “PIFSD”, but had instead ruled that a positive finding of sustainability when measured against the Framework was a sufficiently weighty material consideration to outweigh the conflict with an up to date and recently adopted development plan (para. 51).

The Courts have repeatedly reminded practitioners that they should not engage in excessively legalistic analyses of planning decisions, and instead focus on asking whether the planning judgment of the decision-maker is tolerably clear.  Readers will decide for themselves whether there is, in substance, any real difference between the planning judgment exercised by the Barwood inspector (a decision which the Secretary of State refused to defend) and that exercised by the Secretary of State in the Lichfield case (a challenge to which the Secretary of State is defending).

Satnam Choongh and James Corbet Burcher appeared for Barwood, instructed by Lizzie Marjoram of Bird Wilford and Sale Solicitors.