Barwood Strategic Land Ii Llp v East Staffordshire Borough Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Underhill,Lord Justice Gross |
| Judgment Date | 30 June 2017 |
| Neutral Citation | [2017] EWCA Civ 893 |
| Docket Number | Case No: C1/2016/4569 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 June 2017 |
[2017] EWCA Civ 893
Lord Justice Gross
Lord Justice Underhill
and
Lord Justice Lindblom
Case No: C1/2016/4569
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE GREEN
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Satnam Choongh and Mr James Corbet Burcher (instructed by Bird Wilford & Sale Solicitors) for the Appellant
Mr John Hunter (instructed by Sharpe Pritchard LLP) for the First Respondent
Mr Gwion Lewis (instructed by the Government Legal Department) for the Second Respondent
Hearing date: 25 May 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
What is the scope of the "presumption in favour of sustainable development" in the National Planning Policy Framework ("the NPPF")? That is the basic question in this appeal. Judges in the Planning Court have differed in their answer to it. We have the advantage of being able to approach it in the light of the recent decision of the Supreme Court, upholding the decision of this court, in Suffolk Coastal District Council v Hopkins Homes Ltd. and Richborough Estates Partnership LLP v Cheshire East Borough Council [2017] UKSC 37.
The appellant, Barwood Strategic Land II LLP, appeals against the order of Green J., dated 23 November 2016, allowing the application of the first respondent, East Staffordshire Borough Council, under section 288 of the Town and Country Planning Act 1990 for an order to quash the decision of the inspector appointed by the second respondent, the Secretary of State for Communities and Local Government, in a decision letter dated 29 April 2016, allowing Barwood's appeal under section 78 against the council's refusal of outline planning permission for a development of "up to 150 dwellings" on land off Lower Outwoods Road, Burton upon Trent.
The site of the proposed development is 6.42 hectares of undeveloped land, outside but adjoining the settlement boundary of Burton upon Trent as defined in the East Staffordshire Local Plan 2012–2031. Because it is outside the settlement boundary, it is subject to Strategic Policy 8 of the local plan, which restricts development, including the development of housing.
Barwood's application for planning permission was made on 25 November 2014. The council refused planning permission on 23 July 2015. The local plan was adopted on 15 October 2015. The section 78 appeal was submitted to the Planning Inspectorate on 25 January 2016. It was dealt with on the parties' written representations – in which they had the opportunity to deal with the implications for Barwood's appeal of Coulson J.'s judgment, handed down on 16 March 2016, in Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin), one of the cases in the Planning Court in which the meaning of the policy for the "presumption in favour of sustainable development" has been considered. In his decision letter the inspector found that the proposal was in conflict with the development plan, but that this conflict was outweighed by other material considerations, and therefore that planning permission should be granted.
Green J. accepted the council's argument – unopposed and, indeed, supported by the Secretary of State – that in reaching that conclusion the inspector had erred in law. He granted permission to appeal to this court – because, he said, "[the] case involves the relative merits of two contradictory judgments of the High Court …".
The issues in the appeal
There are five grounds of appeal, which raise these questions:
(1) Did the inspector misdirect himself on his duty, under section 38(6) of the Planning and Compulsory Purchase Act 2004, to determine the application for planning permission in accordance with the development plan unless material considerations indicated otherwise (ground 1)?
(2) Were the inspector's reasons for his conclusion on the proposal's conflict with the development plan deficient (ground 2)?
(3) Did the inspector misdirect himself as to the meaning and scope of the "presumption in favour of sustainable development" by relying on Coulson J.'s judgment in Wychavon District Council, and, in particular, Coulson J.'s conclusion that the presumption was not circumscribed by the policy in paragraph 14 of the NPPF (ground 3)?
(4) Was the inspector entitled, in any event, to find that the proposal's conflict with the development plan was outweighed by its sustainability "when assessed against the NPPF as a whole" (ground 4)?
(5) If the inspector did err in law, should the court exercise its discretion not to quash his decision (ground 5)?
In the course of argument before us it was agreed that the first four of those five questions are encompassed in a single main issue: whether, as the Secretary of State invites us to accept, the inspector misdirected himself in performing the task set for him under section 38(6) by mistaking the true meaning and scope of government policy for the "presumption in favour of sustainable development" in the NPPF. The fifth question – discretion – arises only if that main issue is decided in the Secretary of State's favour.
The court's approach to a challenge under section 288 of the 1990 Act
The principles which guide the court's approach in challenges brought under section 288 of the 1990 Act are well established. In my first instance judgment in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government and Hinckley and Bosworth Borough Council [2014] EWHC 754 (Admin) (at paragraph 19) I referred to "seven familiar principles". None of those principles are controversial here, but there is one in particular that ought to be kept in mind:
"(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores [Ltd.] v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 22)."
That principle has now been underscored in observations made by the Supreme Court in Suffolk Coastal District Council, emphasizing the distinction between the interpretation of planning policy and its application. The interpretation of policy will be suitable, in principle, for legal analysis – though only to a degree that depends on the context and content of the policy in question. The role of the court must not be overstated. The application of policy, however, involves an exercise of planning judgment by the planning decision-maker – which is, of course, not for the court (see paragraphs 22 to 26 of Lord Carnwath's judgment in the Supreme Court, and paragraphs 72 to 75 of Lord Gill's; and paragraphs 24, 42 and 45 of the judgment of the Court of Appeal ( [2016] EWCA Civ 168)).
Section 38(6) and the "plan-led system" of development control
Section 70(2) of the 1990 Act requires that, in dealing with an application for planning permission, a local planning authority must have regard to the provisions of the development plan, so far as is material to the application, and to any "other material considerations". Section 38(6) of the 2004 Act provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The section 38(6) duty drives the "plan-led" system of development control. It embodies a "presumption in favour of the development plan", as Lord Hope of Craighead described it in his speech in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447 (at p.1449H), and, as Lord Clyde said in the same case (at p.1458B), "a priority to be given to the development plan in the determination of planning matters".
There is ample authority on the nature of the duty and the effect of the presumption in section 38(6). It has recently been distilled by this court in Secretary of State for Communities and Local Government v BDW Trading Ltd. (T/A David Wilson Homes (Central, Mercia and West Midlands) [2016] EWCA Civ 493 (in paragraphs 19 to 23 of my judgment, with which the Master of the Rolls and Macur L.J. agreed). Of the five points to which I referred there (at paragraph 21), the first and the fifth are worth repeating here:
(1) "First, the section 38(6) duty is a duty to make a decision (or "determination") by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan (see Lord Clyde's speech in City of Edinburgh Council, at p.1458D to p.1459A, and p.1459D-G)."
(2) "And fifthly, the duty under section 38(6) is not displaced or modified by government policy in the NPPF. Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, its relevance to a planning decision is as one of the other material considerations to be weighed in the balance (see the...
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