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22/11/2016

High Court ruling influences reading of 'presumption in favour of sustainable development'

Supreme court

A judge has ruled that presumption in favour of sustainable development for developments which are contrary to a local plan should be the “exception rather than the norm”, in a decision that saw the refusal of 150 new homes in Staffordshire.

The inspector had approved the homes (downloads pdf) for land next to Queen’s Hospital on the edge of Burton upon Trent despite acknowledging that East Staffordshire Borough Council could demonstrate a five year supply of housing and that the scheme conflicted with various strategic policies in the local plan. He had judged that it was appropriate to apply a “broader presumption” in favour of any development that could be considered sustainable in relation to paragraph 14 of the National Planning Policy Framework (NPPF).

The council challenged the inspector’s decision, arguing that the inspector had “misdirected himself in law” as to the test he should apply.

Mr Justice Green noted the inspector’s arguments for the sustainability of the development, including that the harm to the character and appearance of the area would be “limited” and wider public benefits existed, such as the inclusion of 50 affordable homes to help counteract a “significant shortfall” in the area. But the judge argued that the ‘algorithm’ for determining sustainability uses the local plan as a pivot for decision, and that there was therefore “little scope in logic or substance for departing from the algorithm in paragraph [14] unless there is some reason to reject a local plan.”

Justice Green acknowleged that there was preexisting support for the approach to discretion taken by the inspector but that in this case, having the benefit of case analysis from the council and the secretary of state, he could not support it.

He argued that the inconsistency between the proposal and the local plan amounted to “potentially weighty and substantial matters militating in favour of refusal of the proposal” and that the inspector had indeed misdirected himself, moving to quash his approval.

Justice Green concluded that discretion outside of paragraph 14 of the the NPPF exercised in favour of approval is “likely to be the exception rather than the norm”, but offered no concluded view on exactly how exceptional “exceptional” should be considered, saying this issue would be “better explored in a case where that issue truly arises”.

WYG director Keith Fenwick commented: “if Mr Justice Green’s judgment remains intact following any challenge in the Court of Appeal, then in all but “exceptional” cases, development outside of a local plan strategy will not […] be sustainable and ought to be refused,” adding that practitioners are “none the wiser” as to how to address development that is not in a local plan “but ought to be approved”.

East Staffordshire Borough Council v Secretary of State for Communities and Local Government & Anr. case number: CO/2856/2016

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