East Staffordshire Borough Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 22 November 2016 |
| Neutral Citation | [2016] EWHC 2973 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2856/2016 |
| Date | 22 November 2016 |
[2016] EWHC 2973 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Mr Justice Green
Case No: CO/2856/2016
Mr Hunter (instructed by Sharpe Pritchard) for the Claimant
Mr Lewis (instructed by Government Legal Department) for the First Defendant
Mr Choongh and Mr Corbet Burcher (instructed by Bird, Wilford & Sale Solicitors) for the Second Defendant
Hearing date: 28 th October 2016
A. Introduction: The Issue – the scope and effect of paragraph [14] NPPF
This case raises an issue about the scope and effect of paragraph [14] of the National Planning Policy Framework ("NPPF") on the presumption in favour of the grant of planning approval to sustainable developments which are consistent with Local Plans. The application raises three issues of some wider significance: First, the existence and scope of the discretion to approve a development which is inconsistent with a Local Plan; second, the duty of decision makers to address the weight and significance of the particular reasons why a proposed development is inconsistent with a Local Plan; and third, the relevance of a finding by an Inspector that a proposed development which is inconsistent with a Local Plan is nonetheless " sustainable".
The significance of the issues arising in relation to the scope of paragraph [14] NPPF has been brought into sharp relief because that paragraph and the test it sets out have been the subject of conflicting decisions of the High Court. Paragraph [14] has also been applied in a number of different and inconsistent ways in decisions of Inspectors.
In the present case, on the 29 th April 2016, the Inspector allowed an appeal from a decision of East Staffordshire Borough Council ("ESBC") which had refused permission for the erection of up to 150 dwellings with associated landscaping, public open space, access, drainage, associated infrastructure, earth works and other ancillary neighbouring works ("the Proposed Development") on land at Red House Farm, Lower Outwoods Road, Burton upon Trent, Staffordshire ("the Site").
The Inspector decided to grant permission even though the proposed development was inconsistent with the Local Plan and in particular a variety of strategic policies ("SP") in the Plan. Paragraph [14] NPPF creates a presumption in favour of sustainable development. It does this by reference to whether a proposal is consistent or otherwise in relation to a Local Plan; and it considers the position where no up-to-date Local Plan exists. On the application of the test set out in paragraph [14] it is common ground in this case that the Proposed Development was in conflict with the Local Plan. In coming to the conclusion that he could nonetheless approve the proposal the Inspector stated that he was entitled to apply a broader presumption in favour of sustainable development which operated outwith paragraph [14] and which applied wherever a decision maker concluded that a development (including a development inconsistent with the Local Plan) amounted to a " sustainable development". In this connection he took into account a judgment of the High Court in Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin) (" Wychavon") handed down on the 16 th March 2016 in which the Judge held that even where a proposed development did not fall within the four corners of a Local Plan it could nonetheless be approved because a broad and overarching presumption in favour of the approval of sustainable developments should be taken into account as a material consideration when applying section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004"). However, the Inspector did not have his attention drawn to a judgment of the High Court, also handed down on the 16 th March 2016, which in substance held that there was no significant discretion for decision makers to apply a broader test of sustainable development operating independently of paragraph [14]: See Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin) (" Cheshire") per Jay J.
ESBC has challenged the Inspector's decision and argues that the Inspector has misdirected himself in law as to the test he should apply. The Secretary of State (as a Defendant) served an AOS in these proceedings indicating that he did not contest the claim and he has also served written submissions and made oral representations at the hearing opposing a broad interpretation of the presumption in favour of sustainable development in paragraph [14]. He therefore does not support the grant of permission to the development in issue and he considers that the application should be allowed.
B. Inconsistency of the Proposed Development with the Local Development Plan
The Local Plan for the area in which the development was to be situated includes the East Staffordshire Local Plan 2012 – 2031 ("the Local Plan"). The majority of the Site is located within Outwoods Parish with the Site access falling within Horning Glow and Eton Parish. As a result the Outwoods Neighbourhood Plan and the Horninglow and Eton Neighbourhood Plan also form part of the Development Plan in relation to the Site. There are three SP's of particular relevance to the present case. The spatial strategy of the Local Plan encapsulated in SP2 focuses development within the settlement boundaries in a hierarchy of main towns. Burton upon Trent is at the top of the hierarchy followed by strategic villages and then local service villages. SP4 identifies housing allocations in the Local Plan for main towns and villages. SP8 strictly controls and disapproves of development outside the settlement boundaries but it also sets out a lengthy list of exceptions to this negative starting position. In paragraph [10] of his decision the Inspector stated:
"10. The appeal site lies next to, but outside, the settlement boundary for Burton upon Trent. As a result, for planning policy purposes it lies within the open countryside where Strategic Policy 8 strictly controls development. As the proposal would not comply with any of the exceptions set out in this policy and the site is not a strategic allocation in the Local Plan the scheme would be contrary to Strategic Policies 2, 4 and 8. In terms of the Neighbourhood Plans, the location of the proposed development would not be contrary to their policies."
(Emphasis added)
It follows that the point of departure for the analysis is that the Proposed Development is contrary to SP 2, 4 and 8 of the Local Plan and on the normal application of the NPPF the application for approval would be refused.
C. Sustainable Development and Paragraph 14 NPPF
The analysis of the issue must be performed in the context of: (a) paragraphs [6] – [16] of the NPPF which specifically covers sustainable development; and also (b), the remainder of the NPPF. The NPPF lays great store by the encouragement of sustainable development. It records that international and national bodies have set out broad principles of sustainable development. In particular Resolution 42/187 of the UN General Assembly defines the concept as development which meets the needs of the present without compromising the ability of future generations to meet their own needs. The UK Sustainable Development Strategy " Securing the Future" set out five guiding principles of sustainable development, namely: " living within the planet's environmental limits; ensuring a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly".
Paragraph [7] NPPF identifies three ingredients of a " sustainable development". It provides as follows:
"7. There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:
• an economic role – contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure;
• a social role – supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community's needs and support its health, social and cultural well-being; and
• an environmental role – contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy."
Paragraphs [11] – [16] NPPF describe and then explain the " Presumption in favour of sustainable development".
Pursuant to section 38(6) PCPA 2004 and section 70(2) TCPA 1990 planning law stipulates that applications for planning permission should be determined in accordance with the Development Plan unless material considerations indicate otherwise. Paragraph [12] NPPF makes clear that the Framework does not change the statutory status of the Development Plan as the starting point of decision making. Importantly it also states that proposed developments consistent with an up-to-date Local Plan should be approved but proposed developments that conflict should be refused unless " other" material...
To continue reading
Request your trial
-
Reigate and Banstead and Another v Secretary of State for Communities and Local Government and Another
...in Cheshire East BC v Secretary of State for Communities & Local Government [2016] EWHC 571 (Admin); East Staffordshire BC v Secretary of State for Communities & Local Government [2016] EWHC 2973 (Admin) and Trustees of the Barker Mill Estates v Secretary of State for Communities & Local ......
-
Rectory Homes Ltd v Secretary of State for Housing Communities and Local Government
... ... and South Oxfordshire District Council Interested Party [2020] EWHC 2098 ... Elms Park lies to the east, Elms Road to the south and properties fronting Nelson ... the use of any buildings would be ancillary to another element. The Inspector's questions were as follows:- ... of a “dwelling” as characterised in Gravesham Borough Council v Secretary of State for the Environment (1984) ... Local Government [2017] 1 WLR 1865 ; East Staffordshire Borough Council v Secretary of State for Communities and ... ...
-
Keith Langmead Ltd v Secretary of State for Communities and Local Government and Another
...32 Jay J's approach was followed in East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin) and Barker Mill Estates Trustees v Test Valley BC [2016] EWHC 3028 (Admin). 33 At DL 13, the Secretary of State said: "He notes the Inspe......
-
Trustees of the Barker Mill Estates v Test Valley Borough Council Defendant (Defendant (Second Defendant) Secretary of State for Communities and Local Government (First Defendant)
...was circulated for corrections, the parties sent me a copy of the judgment delivered by Green J in that case on 22 November 2016 ( [2016] EWHC 2973 (Admin)). They also stated that they did not wish to make any submissions on the judgment, but understandably did not suggest that I should di......