Court of Appeal clarifies presumption in favour of sustainable development

The Court of Appeal has clarified the workings of the National Planning Policy Framework’s presumption in favour of sustainable development.

It said that applications can be allowed on this basis only where there is no local plan in force, or some deficiency in it.

The case of Barwood Strategic Land II LLP v East Staffordshire Borough Council & Anor [2017] EWCA Civ 893 saw appeal judges upheld a High Court judgment that quashed an inspector’s decision.

John Hunter, of King’s Chambers, who acted for the council, said this had been on the basis that the inspector wrongly treated the presumption in favour of sustainable development as applying despite having accepted that East Staffordshire could demonstrate a five-year land supply and there was no other relevant deficiency such as absent or obsolete policies.

Hunter said this meant the Court of Appeal had “therefore definitively confirmed that the benefit of the presumption can only be obtained in the circumstances defined by NPPF para.14 and that Mr. Justice Coulson’s view to the contrary in Wychavon District Council v SSCLG is wrong”.

Barwood had sought permission for up to 150 dwellings near Burton upon Trent on 6.42 hectares of undeveloped land outside the settlement boundary, as a consequence of which it was subject to a local plan policy that restricts new housing.

Lord Justice Lindblom said the inspector's error may be understandable, “but it is an error nonetheless. It represents a misinterpretation and unlawful application of NPPF policy, and thus a failure to have regard to a material consideration, or having regard to an immaterial consideration”.

He said this resulted from the inspector's misconception that a proposal that does not gain the “presumption in favour of sustainable development” under NPPF paragraph 14 can nevertheless acquire it elsewhere in the NPPF.

Mark Smulian