Jeremy Cahill QC and Thea Osmund-Smith successful in High Court case

Wed, 23 Mar 2016

Jeremy Cahill QC and Thea Osmund-Smith successful in High Court case concerning the presumption in favour of sustainable development where there is a five year housing land supply. 

The claim in this case was brought by Wychavon District Council challenging the decision of an Inspector to grant permission for 32 dwellings at Walcot Meadow, Walcot Lane, Drakes Broughton, Pershore, Worcestershire. At the time of the appeal, Wychavon DC were able to demonstrate a five year housing land supply, and it was accepted that the proposal was outside the settlement boundary of Drakes Broughton, which gave rise to a conflict with local plan policy GD1.

The Secretary of State conceded shortly before the hearing, but the Interested Party – Crown House Developments - represented by Jerry Cahill QC and Thea Osmund-Smith, continued to defend the claim. 

The Inspector in his Decision Letter had said that the Framework seeks to boost significantly the supply of housing and that was a consideration that attracts substantial weight in the planning balance. Further, the Inspector observed that regardless of there being a five-year housing land supply, the Framework advocates a presumption in favour of sustainable development.

The Council complained that the Inspector had failed to accord the development plan statutory priority pursuant to section 38(6), and had applied incorrect presumptions. On the second point, the Council said that the Inspector had erred in law because 

(i)    paragraph 47, and the requirement to boost significantly the supply of housing  applies only to plan-making and not decision-taking. In support of this argument, the Council relied on the decision of Lang J in Daventry District Council v SSCLG and Another [2015] EWHC 3459 (Admin);

(ii)    secondly, and in respect of the presumption in favour of sustainable development, it was said that the only way that presumption arises is through the operation of paragraph 14 of the NPPF. Accordingly, because paragraph 14 wasn’t engaged in the appeal   - there being a five year housing land supply – the only presumption was in favour of the development plan, and against granting planning permission because of the conflict with policy GD1. 

In respect of the first of those issues, at paragraphs 46 and 47 of the Judgment Mr Justice Coulson held that there was “no justification” for the distinction that the Council were trying to draw, and that paragraph 47 of the NPPF applies to both plan-making and decision-taking.  Further, while the need to boost significantly the supply of housing doesn’t create a presumption in favour of housing development, it is a material consideration, to which regard was properly had.

In respect of the second point, Coulson J again rejected the Council’s argument and held: 

39.    As to the presumption in favour of sustainable development, what the inspector had to do was to balance the statutory priority of the plan GD 1 against the other material considerations in accordance with section 38(6) and paragraphs 11-13 of the NPPF.  In my view, for the reasons already noted, that is what he did.

40.    But secondly, it is quite wrong to say that a presumption in favour of sustainable development does not exist in the NPPF outside paragraph 14.  I have referred in Sections 3.2 and 3.3 above to a number of the paragraphs in the NPPF which refer to the presumption in favour of sustainable development.  It is the ‘golden thread’ running through the NPPF.  The inspector properly had regard to it as an important material consideration, in the same way as the SSCLG had regard to it in Crane.

41.    Thirdly, I consider that Ms Clover lays too much stress on the word ‘means’ in paragraph 14 in support of her submission that this is the only place where the presumption is defined. Paragraph 14 does not offer a true definition at all; it is instead an explanation of the effect of the presumption. And there are many other places in the NPPF where ‘mean’ or ‘means’ is used in the context of this presumption, such as the Foreward and paragraph 6.

42.    Fourthly, and perhaps most important of all, Mr Cahill QC rightly points out that, if the claimant was right, the presumption in favour of sustainable development would only apply if the development plan was silent or absent, or if the relevant policies were out-of-date (the requirements that trigger the last part of paragraph 14).  That cannot possibly be right; that would be such an important limitation on the ‘golden thread’ that, if such was the intention of the NPPF, it would say so in the clearest terms.  

43.    Where there is a conflict between a proposal and a development plan, the policies within the NPPF, including the oft-repeated presumption in favour of sustainable development, are important material considerations to be weighed against the statutory priority of the development plan.  In my view, it is as simple as that.  

Accordingly, it is clear that the Framework engenders a broader overarching presumption in favour of sustainable development that arises not just from the circumstances addressed out in paragraph 14, i.e. when the proposals accord with the development plan or where the development plan is absent, silent or relevant policies are out-of-date. The presumption can also arise in respect of development that is in conflict with the development plan and where there is a five-year supply of housing land such that relevant policies are not out-of-date.  

The Judgment will be of importance in cases where paragraph 14 is not triggered, which is likely to happen more as local authorities adopt up to date Plans and are increasingly able to demonstrate a five-year supply of housing land. In such cases, the presumption in favour of sustainable development will still be an important material consideration to be weighed against any conflict with the development plan.

Click here to view Jeremy Cahill QC's Planning and Enviroment profile and Thea Osmund-Smith's Planning and Environment profile.

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