Appeal court confirms scope of presumption in favour of sustainable development

Planning law expert Clare Mirfin of Pinsent Masons, the law firm behind Out-Law.com, said that the judgment was a "significant" one, which would "bring welcome clarity to planning practitioners on the interpretation of paragraph 14 of the NPPF and the operation of the presumption".

"The planning court has considered a handful of recent cases on the meaning of the 'presumption in favour of sustainable development', with varying conclusions," she said.

"The leading judgment of Lord Justice Lindblom distinguishes the concept of 'sustainable development' and the operation of the presumption in favour of sustainable development. The former is promoted throughout the NPPF while the operation of the latter, which should be seen as a 'golden thread' running through both plan-making and decision-taking, is governed by paragraph 14 alone and should not in itself be treated as a material consideration where a proposal is contrary to the development plan," she said.

The decision therefore overruled the conclusions of Mr Justice Coulson in the High Court in the 2016 Wychavon District Council case, she said. The judge in that case had incorrectly concluded that the presumption in favour of sustainable development should be treated as a "golden thread" running throughout the NPPF itself.

The NPPF requires local planning authorities (LPAs) to identify a supply of development sites sufficient to meet five years' worth of local housing need. Where they are unable to demonstrate a five-year supply of housing land, the NPPF states that their planning policies that are "relevant ... to the supply of housing" should be considered to be out of date. The presumption in favour of sustainable development should then apply, meaning that proposed developments should be granted planning permission unless their adverse impacts "significantly and demonstrably" outweigh their benefits.

The presumption is set out in paragraph 14 of the NPPF, and described as "a golden thread running through both plan-making and decision-taking". However, it goes on to state that this means that decisions should be made in accordance with the development plan unless the plan is "absent, silent or relevant policies are out-of-date".

Developer Barwood Strategic Land II LLP (Barwood) planned to construct up to 150 homes on previously undeveloped land off Lower Outwoods Road, Burton-upon-Trent. Its application for outline planning permission was refused by East Staffordshire Borough Council, on the grounds that the application conflicted with the policy in the authority's local plan of October 2015.

In April 2016, a planning inspector quashed the local authority's refusal, based partly on Mr Justice Coulson's conclusions in the Wychavon case. While the inspector agreed that Barwood's proposal was in conflict with the development plan, this conflict was outweighed by "other material considerations", including the presumption in favour of sustainable development.

In November 2016, the High Court ruled that the inspector had "erred in law" in coming to this conclusion, but granted permission to appeal to the Court of Appeal given that the case turned on "the relative merits of two contradictory judgments of the High Court". A different High Court judge had reached the opposite conclusions on the interpretation of the presumption, but his judgment came after the planning inspector issued the decision letter in this case.

The LPA in this case had "done what government policy in the NPPF requires it to do, has put in place an up-to-date local plan, and is able to demonstrate the necessary five-year supply", the Court of Appeal said.

"The inspector's error may be understandable," said Lord Justice Lindblom. "But it is an error nonetheless ... It resulted from the inspector's misconception, in the light of the judgment in Wychavon District Council, that a proposal which does not - as he accepted here - gain the 'presumption in favour of sustainable development' under the policy in paragraph 14 of the NPPF can nevertheless acquire it elsewhere in the NPPF."

Elsewhere in the judgment, Lord Justice Lindblom drew on a recent Supreme Court decision relating to the interpretation of the NPPF in order to set out five basic principles that arise where an LPA fails to demonstrate a five-year housing supply. This "further cemented" the judgment as "the 'go to' decision on NPPF interpretation", said planning law expert Clare Mirfin.

"Where a local authority has an up-to-date local plan with which a development proposal does not comply, as per paragraph 12 of the NPPF, the presumption in favour of sustainable development will not apply and in fact a reverse presumption - that the development should be refused – is created," she said. "Other material considerations, however, may be powerful enough to justify a decision otherwise than in accordance with the development plan."

"Developers looking to promote schemes that are not capable of being considered to comply with an up-to-date local plan will need to be alert to this fact and will need to work to create as robust a set of material considerations as possible in order that the planning judgment may be exercised in favour of their scheme," she said.