NPPF 14 and sustainable development
A High Court judge has considered the application of paragraph 14 of the National Planning Policy Framework. Richard Honey sets out the key findings.
Mr Justice Jay has given judgment in the case of Cheshire East BC v SSCLG & Renew [2016] EWHC 571 (Admin) concerning the operation of paragraph 14 of the National Planning Policy Framework and the presumption in favour of sustainable development.
The judgment included the following consideration of paragraph 14.
"18. My point of departure is not an analysis of the first instance decisions to which I was referred but my own approach to paragraphs 6-8 and 14 of the NPPF, assisted as I have been by the submissions of Mr Richard Honey for the First Defendant and Mr Jeremy Cahill QC for the Interested Party.
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 Where the second bullet point applies, because the development plan is absent, silent or relevant policies are out-of-date, the proposal under scrutiny will be sustainable development, and therefore should be approved, unless any adverse impacts significantly and demonstrably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.
22. In practice, there will be questions of fact and degree. If, for example, the planning advantages are assessed to be non-existent, the presumption is likely to be easily displaced. The stronger the planning benefits are assessed to be, the more tenaciously the presumption will operate and the harder it will be to displace it.
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.
26. In short, paragraph 14 is about process, not outcome. There is no circularity in the foregoing analysis, because if the adverse impacts do significantly and demonstrably outweigh the benefits (when assessed against the rest of the NPPF), then the proposal will not amount to sustainable development, and will be refused. Indeed, Mr Hunter’s argument seems to me to place an almost insurmountable hurdle against development being sustainable, because he fails to explain how the concept should be applied outside the scope of paragraph 14. It is a freewheeling exercise of discretion without parameters. Moreover, I agree with Mr Honey that it is difficult to understand on what basis paragraph 14 would have any practical utility if it only applied to cases where the development had already been found to be sustainable, and to my mind Mr Hunter’s “enhanced presumption” is a completely incoherent and unworkable concept, also one being nowhere to be found in the policy wording.
27. Further, the possibility of a prior or extrinsic assessment of sustainable development is quite inconsistent with the first bullet-point in paragraph 14. No explanation was provided by Mr Hunter as to how and why the two bullet points might work differently.
28. Mr Honey made the good point that the meaning of sustainable development is not rigidly to be determined solely by reference to the indented methodology. As I have pointed out, it is always subject to material considerations indicating otherwise, thereby introducing an element of flexibility both ways. If, taking just one example, the impact or harm is substantial but not such as significantly and demonstrably to outweigh the benefits, then the decision-taker has sufficient flexibility to refuse permission, provided of course that the other material considerations, if any, are carefully defined and assessed.
29. This point disposes of Mr Hunter’s argument based on later provisions of the NPPF, but his argument is also defeated by the application of the second indent in paragraph 14. If, for example, the proposal falls within one of the specific policies restricting development, then the presumption either is very readily rebutted, or its effect is heavily diluted to reflect the precise provisions of the restrictive policy in question.
30. Although I would agree that paragraph 6 of the NPPF does not mention paragraph 14, that latter paragraph is highlighted in the text and, furthermore, must refer back to paragraphs 6-8 on account of the clause, “when assessed against the policies in this Framework taken as a whole”. So, paragraph 14 is the driver to correct decision-taking, not paragraphs 6-8."
The Judge refused an application by Cheshire East BC to appeal to the Court of Appeal.
Richard Honey is a barrister at Francis Taylor Building. He appeared for the Secretary of State, instructed by the Government Legal Department.