East Staffordshire BC v SoS for CLG [2016] EWHC 2973 (Admin) raised 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 raised 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 was 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 this case the Inspector allowed an appeal from a decision of the Borough Council which had refused permission for the erection of up to 150 dwellings and other works. 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 was 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“. The Council challenged the Inspector’s decision and argued that the Inspector had misdirected himself in law as to the test he should apply.
Green J concluded that the Inspector had erred in law and misdirected himself as to the test to be applied and the approach to be adopted to the assessment of the evidence.
Green J observed that the point of departure for the analysis was that the Proposed Development is contrary to SPs of the Local Plan and on the normal application of the NPPF the application for approval would be refused. He stated that 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. Paragraph [7] NPPF identifies three ingredients of a “sustainable development“. 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 considerations indicate otherwise. The use of the word “should” presupposes a presumption of refusal which is rebuttable by other material considerations. Paragraph [13] NPPF states that the Framework constitutes guidance for local planning authorities and decision makers both in drawing up plans and as a material consideration in determining applications.
Paragraph [14] NPPF was at the core of this case. It described, in substance, a formula or test for determining when the presumption in favour of sustainable development applies and it creates as the pivot of the analysis the context and substance of an up-to-date Local Plan. It has three components: (i) a statement of principle (“the golden thread“); (ii) application of the principle in the context of plan-making; and (iii), application of the principle in the context of decision-making.
Paragraph [15] NPPF recognises that the concept of “sustainable development” is intrinsic to Local Plans so that application of the principles set out in a Local Plan will create a predictable and transparent means of securing sustainable developments.
Green J analysed first the existence of a discretion outside of paragraph [14] NPPF. He said:-
“21. The first point to address is whether paragraph [14] NPPF is an exhaustive and comprehensive test for the operation of section 38(6). Section 38(6) PCPA 2004 makes clear that, prima facie, it is the Local Plan that governs and prevails. As paragraph [12] NPPF makes clear (consistently with section 38(6)): (a) a proposal that is inconsistent with a Local Plan “should be refused“, unless “other material considerations indicate otherwise“; and (b), the Framework does not alter the statutory status of the Local Plan as the fons et origo of decision making. In itself the Local Plan is therefore a strong indication of where the answer lies in a given case. The NPPF is “guidance” which is relevant in both the drawing up of the Plan “… and as a material consideration in determining applications” (cf paragraph [13] NPPF).
- In the present case the point of departure, applying section 38(6), is that the proposal was in conflict with the Local Plan and therefore should be rejected absent “other” countervailing and overriding material considerations. Paragraph [14] NPPF is capable in principle of amounting to such a material consideration but on the facts of this case, as the Inspector recognised, its application led to refusal of the application. The limb of paragraph [14] NPPF dealing with “decision-taking” indicates that where a proposal is consistent with relevant up-to-date plans it should be approved. It is silent as to what happens in the converse situation, namely where it is inconsistent. However, in such a case where the proposal is inconsistent with relevant policies it must be implicit in paragraph [14] (a fortiori) that it should not be approved and this accords with paragraph [12] NPPF which indicates that a proposed development which is inconsistent with paragraph [14] should be refused approval. This is not an abrogation of the presumption in favour of sustainable development because that concept is thoroughly embedded in, and permeates throughout, the entire Local Plan in accordance with the “golden thread” which runs through both plan-making and decision-taking. If a proposed development is inconsistent with paragraph [14] it is not therefore a “sustainable development” at least as that term is understood in paragraph [14] NPPF. A decision that a proposal should not be approved because it is inconsistent with the Plan is a conclusion which, necessarily, therefore accords with the principles governing the existence and approval of sustainable developments in the NPPF.
- But there is an important caveat to this conclusion. Whilst the NPPF and, in this case, paragraph [14] thereof, is normally the preponderant or major part of the material considerations exception in section 38(6), it cannot altogether occupy the field of “material” considerations. In principle there must be some scope for a discretion to approve a proposed development which is inconsistent with the Local Plan. All the parties in this case including the Secretary of State, accept, in principle, this proposition. The dispute at base therefore is not as to the existence of a discretion so much as to the scope of this residual power.
- There are three reasons why in principle there must be some residual scope for the exercise of discretion. First, as a matter of elementary principles of public law this is the natural consequence of section 38(6) which cannot be construed as permitting policy guidance (i.e. the NPPF) to fetter the statutory discretion conferred thereby: See in this respect, R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 at paragraph [19]. Secondly, this is acknowledged in footnote 10 to the NPPF which operates as a rider to the expression “for decision-taking this means…” in the body of paragraph [14]. When one combines that text with the footnote one gets: “for decision-taking this means, unless material considerations indicate otherwise…“. This therefore supports the conclusion that the test in paragraph [14] is not all-embracing. It acknowledges that the proviso to the section 38(6) may in principle cover a territory somewhat broader than paragraph [14]. Third, there is section 19(2)(a) PCPA 2004 which states, in relation to plan-making, that the local planning authority must have regard to national policies and advice contained in guidance issued by the Secretary of State. And of course the NPPF is the paradigm example of such national policies and advice. However section 19(2)(a) makes clear that local planning authorities are only required to “have regard to” such national policies and advice. They are not straight-jacketed by such policies and advice. This also suggests that, at least to some degree, there is a residual discretion operating outside of paragraph [14].”
Green J analysed next the scope of the discretion outside of paragraph [14] NPPF. He said:-
“30. The crux of the dispute thus focuses upon whether the Inspector correctly delineated the ambit of his permissible discretion. In my judgment it follows from the principles of interpretation which govern the scope and effect of paragraph [14] set out above that its application in a given case will cover the preponderant or major part of the exercise of discretion inherent in the concept of “material considerations“. Paragraph [14] is essentially about process not outcome … There is no reason why it should not sensibly suffice to cover the generality of cases which arise. … The outcome inherent in paragraph [14] contemplates a two stage process with “plan-making” preceding “decision-taking“; and then, in the case of the latter, a bifurcated approach contingent upon the existence (or otherwise) of an adequate Local Plan. In both cases guidance is given as to the circumstances when the presumption in favour of sustainable development is to apply, but critically for the present case, it also indicates where it is not to apply or even is to be reversed (when read in the light of paragraph [12] NPPF). The test or algorithm uses as the pivot for a decision the Local Plan. There is in relation to decision making little scope in logic or substance for departing from the algorithm in paragraph [14] unless there is some reason to reject a Local Plan.
- Insofar therefore as paragraph [14] permits of a residual discretion it must be recognised that the outcome arrived at by the operation of paragraph [14] should carry considerable gravitational pull. It should yield only as an exception to the norm where there exists objective and substantial reasons which can be readily demonstrated to a high degree of probative value and which takes into account the particular reasons why a development has been found to collide with the Local Plan. I should add however (see paragraph [54] below) that I express no concluded view on exactly how exceptional “exceptional” actually is; this being an issue better explored in a case where that issue truly arises.
- When a decision is being considered in a case where the proposed development conflicts with the Local Plan (and is thereby prima facie to be refused under paragraphs [12] and [14] NPPF) it follows from all of the above that the starting point for analysis should not be that there is a presumption in favour of the development. This is because the outcome of the operation of the paragraph [14] algorithm is that the presumption has been rebutted. … In such a case, therefore, the decision maker’s starting point should be that the proposal conflicts with paragraph [14] and is not therefore consistent with the presumption of sustainable development. Applying paragraph [12] the development “should be refused“. The question which follows is whether, nonetheless, there are substantial and demonstrable objective benefits which outweigh this adverse starting point. My analysis leads me to favour a relatively narrow construction of the residual discretion outside of paragraph [14].”
Finally, Green J analysed considerations supporting the (relatively) narrow construction of paragraph [14] NPPF. He said:-
“34. There are a number of supplementary reasons which reinforce me in the conclusion that I have arrived at above. These may be summarised as follows.
- First, my conclusion is consistent with the core planning principle that planning decisions be made with a high degree of predictability and efficiency. …
- The paragraph [14] algorithm enables decision makers to take decisions by reference to the Local Plan and paragraph [15] NPPF (set out at paragraph [13] above) explains that by this route decisions on “sustainable development” will be taken. This means that decisions will be taken transparently and on the basis of transparent, and objectively determined, criteria. The desirability of clarity and transparency is not to be underestimated in an area of economic activity where predictability is critical to forward-looking business planning. The alternative analysis, whereby a broad discretion arises outside of paragraph [14] NPPF and notwithstanding a Local Plan, leads to uncertainty. … In my view a construction which furthers predictability and transparency based on adherence to the Local Plan is one which is to be preferred over one that leads to uncertainty.
- Second, paragraph [14] reiterates the powerful nexus between the Local Plan and “sustainable development” with the latter being defined by reference to the former. This is explicit in the “plan-making” component of paragraph [14]. But the primacy of the Local Plan is a theme which runs throughout the NPPF generally. For example, paragraphs [150] – [151] makes clear that Local Plans “… are the key to delivering sustainable development that reflects the vision and aspirations of local communities” (paragraph [150] NPPF). Local Plans must be prepared with the objective of contributing to the achievement of sustainable development and they should be consistent with the presumption in favour of sustainable development (paragraph [151] NPPF). Paragraph [182] NPPF makes clear that a Local Plan should be examined by an independent inspector whose role is to assess whether the Plan has been prepared in accordance with, inter alia, legal and procedural requirements, and whether it is “sound“. A local planning authority should submit a plan for examination which it considers to be “sound” because it is positively prepared, justified, effective, and: “consistent with national policy – the plan should enable the delivery of sustainable development in accordance with the policies in the Framework“. Paragraphs [183] and [198] emphasise that Neighbourhood Plans are intended to deliver sustainable development and that where a planning application conflicts with the Neighbourhood Plan that has been brought into force permission should not normally be granted. The upshot of this is that a concept of “sustainable development” is, and indeed must be, a driving principle behind every Local Plan as the predominant means of securing sustainable development. When this is taken into account as a guide to interpretation of paragraph [14] it underscores the considerable importance of planning decisions being taken consistently with the Local Plan. It does not permit of an interpretation which assumes that planning proposals which are inconsistent with the Local Plan remain subject to, and the beneficiary of, some extraneous presumption in favour of developments that an Inspector concludes is “sustainable” in disagreement with a Local Plan. Underpinning the primacy of the Local Plan in the NPPF is a recognition of the political importance of “localism“. The Local Plan is a document widely consulted over which reflects the balancing of a multiplicity of different, often competing, considerations. As such there is a very democratic reason why it must be accorded great weight. …
- This conclusion, namely that the concept of “sustainable development” is predominantly implemented via the Local Plan, is also reflected in the Impact Assessment (July 2012) which accompanied the NPPF. …
- The centrality of up-to-date Local Plans was also perceived as desirable to avoid the uncertainty which flowed from a set of rules which encouraged decisions to be made through systematic use of the appeals procedure: … The Impact Assessment is … consistent with the policy contained in the NPPF and supports the conclusion that it is through the Local Plan that sustainable development will be implemented and introduced. This is a consideration which lends support for the conclusion I have arrived at which is that the scope for the approval of developments which are inconsistent with a Local Plan is limited. It seems to me that, although my judgment does not turn upon it, the contents of the Impact Assessment are admissible as one source of guidance to an interpretation of the NPPF (by analogy with the principles governing the admissibility of pre-statutory material as a guide to construction of the subsequent measure: …
- Third, emphasis has been attached by both parties albeit in different ways to the phrases “golden thread” and “means” in paragraph [14]. The argument with regard to “means” (advanced by ESBC and the Secretary of State) is that it is to be treated as “equates to” or “must lead to” or some other proxy phrase indicating that the operation of the paragraph [14] test will inexorably lead to the correct result. In my view there is some force in this but, because I have accepted that there is scope for an element of discretion outside of paragraph [14], the phrase cannot lead to the conclusion that the operation of paragraph [14] leads to an unassailable and irrebuttable result in every case. It is nonetheless an indication that the test in paragraph [14] is intended to cover the overwhelming majority of cases. …”
Green J applied the above principles to the facts. He found the Inspector to have been in error in three respects. The first was incorrect resurrection of the presumption. The second was the omission of any balancing exercise taking into account the reasons why the proposed development was inconsistent with the Local Plan. Green J said:-
“45. In my judgment if a decision maker is to approve a proposal which is inconsistent with the Local Plan then the reasons for that (which include addressing the weight of the reasons why the development was inconsistent with the Local Plan) must be set out in the decision. …”
The third respect was the concept of “sustainable development”. The Inspector had not explained why the proposed development was “sustainable” when it prima facie was inconsistent with significant policies in the Local Plan.
Green J concluded with a postscript as to “how exceptional is exceptional”. He said, at paragraph 54:-
“There is one note of caution that I wish to make (flowing out of paragraph [31] above). I have recognised the existence of a discretion outside of paragraph [14] NPPF. I have suggested that it is likely to be the exception rather than the norm that it will be exercised in favour of approval. However it has not been necessary, in order to decide this case, to determine quite how exceptional, “exceptional” has to be. … The parameters are for another case to measure. … It may … be for other cases to explore the issue of the precise scope of the exception in greater detail when a case properly turns upon the point.”