Sue Chadwick looks at the challenges thrown up by the concept of 'sustainable development'.
With his statement that “planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean" [i] Lord Reed clearly stated the limits of interpretative possibilities for local authorities in relation to plan policies. This article questions whether the same limits apply to the Government’s recent interpretation of sustainable development in the 2012 National Planning Policy Framework (‘the Framework’).
Episode MMXII: A new hope
“Change for the better, and not only in our built environment”: is just one of the phrases used by Greg Clark, then Minister of Planning, to explain sustainable development in the 2012 foreword to the Framework.
The Framework also introduced a presumption in favour of sustainable development. The local development plan is retained as the starting point for decisions, but where this plan is ‘absent, silent or out of date’ then developments should be approved unless: (1) they are in conflict with specific Framework policies or (2) the impact of a development outweighs its benefits, when considered against the Framework.
The sustainability, or otherwise of planning proposals, particularly in the absence of a current development plan, is now the primary consideration in the decision-making process. It would therefore seem to be essential to have a clear way of assessing whether or not a development is sustainable in Framework terms, a reliably defined fulcrum from which to hang the competing weights of impact and benefit in any development proposal.
However, (and in sharp contrast with the concept of ‘development’ in planning law,) sustainable development has no fixed or formal definition.
We’re not in Stockholm anymore
The established definition of sustainable development: meeting “the needs of the present without compromising the ability of future generations to meet their own needs” originated in Our Common Future - a report presented by Gro Harlem Brundtland to the UN General Assembly in 1987.
This ‘Brundtland’ definition was used without further definition in key documents such as the Rio Declaration in 1992, the Kyoto Protocol in 1998 and the first European Sustainable Development Strategy in 2001.
However the scope of the term extended as it became more widely used. The UK Sustainable Development Strategy 1994 added four policy objectives, the Local Government Act 2000 introduced the now-familiar three ‘pillars’ of sustainable development and the UK Sustainable Development Strategy 2005 introduced a new set of sustainable development indicators, four priorities and five new principles.
Rather than building a clear interpretative consensus, the more often the term was used, the less absolute meaning could be attached to it. This created a definitional space rather than enforceable standard, and a concept of sustainable development burdened with incoherence and bloated with meaning.
Sustainability, Eric, but not as we know it
Rather than adopting or refining existing definitions, the Conservative Party introduced their own, with the 2010 planning green paper Open Source Planning[ii] where the proposed presumption in favour of sustainable development was described as a ‘right to build’. The 2011 Budget document then went on to define sustainable development as a position "where the default answer to development is ‘yes’".[iii] The most direct and significant engagement with the concept of sustainable development is however the Framework, produced in draft in July 2011 and adopted in March 2012.
The Framework inserts a presumption in favour of sustainable development into the heart of the planning process as the overriding - in most cases - consideration for assessing whether or not permission should be granted. However, the Foreword and Introduction alone contain five separate interpretations of and at least two purposes for ‘sustainable development. This obscures rather than defines what the term means in this context. Paragraph 6 of the main document then goes on to state that ‘The policies in paragraphs 18 to 219, taken as a whole, constitute the Government’s view of what sustainable development in England means in practice for the planning system’.
Deciding whether or not a particular proposal is sustainable will therefore depend on the extent to which an individual proposal conforms to the Framework policies. However the Framework is burdened with the same interpretative difficulties traditionally attached to development plan policies: it is also " full of broad statements of policy, many of which may be mutually irreconcilable.” [iv] The meaning of sustainable development is not therefore fixed but will be defined on a case by case basis, depending on the individual facts, and as a matter within the judgment of the particular decision maker, be that planning officer, planning committee, planning inspector or the Secretary of State.
Humpty Dumpty redux
In Wonderland, when Humpty Dumpty asserts that he can choose what words mean. Alice questions ‘whether you can make words mean so many different things.’ But this is the wrong question. According to Humpty Dumpty the key is ‘which is to be master’.
In the context of judging the merits of planning decisions, including deciding whether or not a development is sustainable, the Secretary of State is clearly the ‘master’ of a discretionary space that remains free from judicial intervention. In this discretionary space, the Secretary of State is indeed in a position to make sustainable development mean anything he wants it to, so long as it is broadly consistent with the Framework policies. This creates significant scope for the Secretary of State to approve development that is not ‘sustainable’ in the sense intended by the original Brundtland definition, or the Sustainable Development Strategy, free from the threat of successful legal challenge in any court.
Sustainable development may indeed be a golden thread, but does it run through the baseless fabric of a planning vision?
[i]Tesco Stores Ltd v Dundee City Council  UKSC 13, paragraph 19
[iv]Tesco Stores Ltd v Dundee City Council  UKSC 13, paragraph 19