Wed, 16 Mar 2016
Jerry Cahill QC and James Corbet Burcher in Successful s288 Defence in the Planning Court
Mr Justice Jay has handed down judgment this morning in Cheshire East Borough Council v Secretary of State for Communities and Local Government and Renew Land Developments  EWHC 571 (Admin): judgment.
The judgment provides a comprehensive consideration of the correct approach to NPPF paragraph 14 and the presumption in favour of sustainable development text:
“where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole”
The judge has described NPPF 14 as incorporating a “balance…weighted, loaded or tilted in favour of the proposal”, a “rebuttable presumption, although one which will only yield in the face of significant and demonstrable adverse impacts” which can be characterised as an “algorithm” (Judgment, paragraphs  and ).
In doing so, the judge has followed and consolidated the extensive authority in the other direction: see Judgment, paragraph : notably the most recent judgments of Hickinbottom J in Exeter CC v SSCLG  EWHC 1663 (Admin) (paragraph 15), Malvern Hills DC v SSCLG  EWHC 2244 (Admin) (paragraphs 10 and 13) and of Lindblom J (as he then was) in Bloor Homes v SSCLG  EWHC 754 (Admin) (paragraph 44).
The learned judge respectfully disagreed with the judgment of Lang J in William Davis v SSCLG  EWHC 3058 (Admin), : “paragraph 14 NPPF only applies to a scheme which has been found to be sustainable development” which has been interpreted by some decision-makers as requiring a form of extraneous assessment of sustainability outside NPPF 14.
The judgment is therefore a decision of major importance across the planning sector, albeit soundly based on existing principles established in recent case law.
The Appeal Decision Letter Under Challenge
Jerry Cahill QC acted in the initial s78 appeal for Renew Land Developments: Appeal Ref: APP/R0660/A/14/2225591 Kents Green Farm, Kents Green Lane, Haslington, Crewe before Inspector Brendan Lyons (dated 7 September 2015).
Inspector Lyons allowed the appeal, accepting the Appellant’s submissions on NPPF 14, including at DL20:
“No prior or parallel assessment is needed, but the sustainability of the proposed development is to be judged by a positively weighted balancing of the benefits and adverse impacts against the policies of the NPPF as a whole.”
Having explored the planning merits of the appeal, the Inspector concluded at DL40:
“I consider that apart from some very limited harm to rural character, the environmental dimension of sustainable development would largely be addressed. When assessed against the policies of the NPPF as a whole, the adverse impacts of the proposed development would not significantly and demonstrably outweigh the benefits. The proposal must therefore be regarded as sustainable development, to which the presumption in favour set by the NPPF would apply.”
The Section 288 Challenge
Cheshire East Borough Council challenged the decision on a single ground that the Inspector had failed to apply the judgment in William Davis, , as interpreted by Patterson J in Dartford BC v SSCLG  2636 (Admin) and later by Lang J in Wenman v Secretary of State for Communities and Local Government and Waverley Borough Council  EWHC 925 (Admin).
Jerry Cahill QC and James Corbet Burcher, instructed by Emily Williams of Irwin Mitchell LLP, acted for Renew as the Second Defendant to the challenge, providing detailed written submissions on the correct interpretation to NPPF 14 and the broader case law and appearing at the hearing last week before Jay J on Wednesday 9 March 2016.
The Judgment begins not with the pre-existing case law, but the text of NPPF 14 itself:
“19. Although there may be cases where sustainable development “jointly and simultaneously” achieves economic, social and environmental gains (as per the optimistic language of paragraph 8 of the NPPF), I have already said that it must be obvious that in most situations there will be somewhat of a trade-off between competing desiderata. It follows that a balance must be struck, but on what basis? In my judgment, the answer is to be found in the language of paragraph 14 of the NPPF. Where the second bullet point applies, because the development plan is absent, silent or relevant policies are out-of-date, the proposal under scrutiny will be sustainable development, and therefore should be approved, unless any adverse impacts significantly and demonstrably outweigh the benefits.
20. In the absence of paragraph 14, decision makers would be unable to decide how tensions between the competing desiderata should be reconciled. If, for example, the economic and social merits only slightly outweighed the environmental, what then? The answer is not to be found in paragraphs 6-8. The framers of the NPPF rightly thought that guidance in this regard was necessary. The guidance they have provided in the form of paragraph 14 is to say that the proposal should be approved as sustainable development unless the adverse impacts clearly and significantly outweighed the benefits.
21. On this approach, the effect of paragraph 14 is that proposals which would otherwise have been refused because their planning merits were finely balanced should be approved – subject to the first indent of the second bullet point being made out. Another way of putting the matter is that the scales, or the balance, is weighted, loaded or tilted in favour of the proposal. This is what the presumption in favour of sustainable development means: it is a rebuttable presumption, although will only yield in the face of significant and demonstrable adverse impacts.”
The Judgment then continues by considering the competing submissions on the alternative approach first explored in William Davis:
23. In my judgment, this is not, and cannot be, a question of assessing whether the proposal amounts to sustainable development before applying the presumption within paragraph 14. This is not what paragraph 14 says, and in my view would be unworkable. Rather, paragraph 14 teaches decision makers how to decide whether the proposal, if approved, would constitute sustainable development.
24. I do not fully understand the reference in some of the authorities to sequential decision making or to decisions being made about the sustainability of development somewhere along the notional road. The whole point of paragraph 14 is to lead decision makers along a tightly defined and constrained path, at the end of which the decision must be: is this sustainable development or not? If what is being said in these authorities is that decisions about the weight to be given to each of the paragraph 7 NPPF dimensions should be made before paragraph 14 is considered and applied, then I would have no difficulty at all, because these are logically prior planning judgments which fall to be made on all the evidence.
25. Nor do I believe that it is necessarily helpful to say that paragraph 14 does not apply to development which is not sustainable. If, having applied the paragraph 14 algorithm, that is the conclusion which is reached, I have no difficulty with this formulation. However, a decision maker will only know if a proposal is sustainable or not by obeying the processes mandated by the paragraph. An integral part of the process is a positive weighting in favour of sustainable development in the sense that the proposal will be assessed as such unless the planning harm clearly and significantly outweighs the planning gain.
Additional findings were made on William Davis, Wenman and Dartford, the judge concluding of the formula in :
“34. The only way I can interpret these sentences is that Lang J was holding that the determination of the issue of sustainable development was a matter anterior to, or at least independent from, paragraph 14 of the NPPF. … The final sentence from this citation can be read in two possible ways, although its more comfortable interpretation is that paragraph 14 applies after a planning judgment has been made. If my interpretation of what Lang J meant is correct, then I must record my respectful disagreement with her. I should add that in my view paragraph 37 was not essential to her decision.”
On this basis, the Inspector’s decision, especially DL20 and DL40 was found to be legally correct.
Permission to appeal to the Court of Appeal has been refused at first instance.
Jerry Cahill QC and James Corbet Burcher are regularly instructed for the development industry in respect of residential housing schemes at s78 appeal, local plan examination and related High Court challenges in this area.
Current instructions, acting both together and separately with other members of No5’s Planning Group, include statutory challenges under s288 and s113 on the correct approach to NPPF 47, including the calculation of OAN post-Gallagher v Solihull, the operation of the presumption in favour of sustainable development outside NPPF 14, the correction construction of NPPF 49 “policies relevant to the supply of housing” and the duty to cooperate under s33A of the Planning and Compulsory Purchase Act 2004.