Niall Blackie, Senior Partner at FBC Manby Bowdler, looks back at a week that has seen three landmark decisions in relation to town and country planning law and housing developments.
The issue in the Cheshire East decision of Jay J on 16 March  EWHC 571 (Admin) is one of real significance. The case was one where the Council accepted that for a particular reason, the development plan was ‘absent, silent or relevant policies are out-of-date’ so that paragraph 14 of the NPPF had to be looked at.
The Council was arguing that “some form of separate assessment of the sustainability of the proposed development is required before deciding whether paragraph 14 is engaged”, whereas the developer was contending that there was no requirement to undertake any such form of free-standing assessment, and that paragraph 14 “itself provides a sufficient basis to decide whether proposed development would be sustainable”, a contention with which, incidentally, the Secretary of State agreed.
The Inspector had found that there was limited adverse (environmental) impact but that ‘the adverse impacts of the proposed development would not significantly and demonstrably outweigh the benefits. The proposal must therefore be regarded as sustainable development, to which the presumption in favour set by the NPPF would apply’. So, the Council argued, the development of the site in question was not sustainable.
The Judge held that the normal situation, in a planning case, is that there will be ‘somewhat of a trade-off between competing desiderata’. He observed that this was because a key part of NPPF paragraph 14 is that the question is whether any adverse impacts would significantly and demonstrably outweigh the benefits, when assessed against the polices in this Framework taken as a whole. So paragraph 14 is a statement that tells decision makers how to balance the competing factors.
It stresses the level of harm that would need to be found in order to justify a refusal. This is what the presumption in favour of sustainable development means: it is a rebuttable presumption, although it will only yield in the face of significant and demonstrable adverse impacts. 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.
The key point from this is that one does not decide whether a development is ‘sustainable’, in some kind of vacuum, before assessing whether the presumption is engaged, rather, one uses the paragraph to decide whether a proposal is ‘sustainable’, and, if it is, then the presumption applies.
The importance of Jay J’s judgment, which agreed with the developer and Secretary of State’s position, is that it makes clear in any case where the development plan is out of date, that unless either any adverse impacts are significant, or, there is something specific in the NPPF against the development, the presumption requires permission to be granted. This means that the many ‘finely balanced’ situations where limited harm is shown would now lead to a decision in the opposite direction.
South Suffolk and Richborough
As luck would have it, on the very next day, the Court of Appeal delivered judgment in the conjoined cases of South Suffolk and Richborough,  EWCA Civ 168 and explained how one determines the question of when a development plan is out of date.
That question had been conceded in the Cheshire East case. The cases centred around paragraph 49 of the NPPF which includes this text: ‘Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites’. The Court of Appeal was faced with two or three differing interpretations of this phrase. Did it, for example refer only to policies actually setting out numbers and distribution of housing allocations; or did it mean any policy which could affect where housing might be located?
A policy saying that there should be no development in an area ie restricting housing is a policy ‘for’ the supply of housing using the wider interpretation, but it would be a policy ‘against’ housing supply using the narrow interpretation (and so excluded), so the point was a very important one. There was also an intermediate interpretation which required a judgment to be made about whether a policy (that was eg to protect a landscape by saying that there should be no new development) was so general as not to fall into the housing supply category at all.
Lindblom LJ held that the wider interpretation was correct. ‘It reflects the reality that policies may serve to form the supply of housing land either by creating it or by constraining it – that policies of both kinds make the supply what it is.’ He therefore rejected both the narrow and intermediate interpretations. However he went on to explain that the effect of paragraph 14 is that the decision maker will then have to consider the relevance of the ‘general policies’, in the context of a finding that the plan is out-of-date. So a green belt policy may be restrictive, but powerful weight would still be given to it.
Lindblom LJ held that NPPF paragraph 49 relates not only to plan making but to decisions, and that it is inexorably linked to NPPF paragraph 14. He held that a plan can be out-of-date if it is not up-to-date; this is important because it may be that a recently adopted plan which is still within its nominal plan period, can very quickly become out-of-date if circumstances change.
The effect is that if the delivery of housing is shown to be slow, then even with a recently adopted plan, it may be the policies have to be regarded as out-of-date so that the presumption in paragraph 14 would change the approach a decision maker would take as to the relative weight to give to all the policies before him.
The third case this week was a decision by Coulson J in Wychavon  EWHC 592, and from this case, two important principles emerge.
Firstly that paragraph 14 of the NPPF is not the only place in the NPPF where a presumption is referred to; in fact it is a ‘golden thread’ running through the whole of the NPPF. It is always a material consideration in a planning case. So it follows as the judge held, that the presumption does not only apply where the policies are out of date. This is crucial to the judgments which have to be reached on planning cases. It extends the ambit of the other two cases considerably.
Secondly, as is well known, paragraph 47 of the NPPF requires a local planning authority to ‘boost significantly’ the supply of housing in its area. The judge held that this requirement applied not only to policy making, but also to decision making on individual planning applications. It, again, is always a material consideration to be weighed in the planning balance. This is critical because the more restrictive interpretation had been followed by many decision makers, and is now shown to be wrong.
In the first two of these cases, the Councils conceded the shortfall on housing supply. However in some areas, for example in Shropshire, there are arguments over whether there is an adequate supply or not.
The cases demonstrate that Councils cannot argue that simply because a plan is recently adopted (as in Shropshire), then it ‘must’ be up-to-date: that conclusion can only be drawn by a thorough analysis of the requirement for, and delivery of, housing in its area, and whether or not a plan is up-to-date or out-of-date, the requirement to boost housing supply applies to all its planning decisions (and not only to decisions which are taken when a shortfall is shown).
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