NPPF Case Law Update October 2017 John Arthur, Burges Salmon

NPPF Case Law Update October 2017 John Arthur, Burges Salmon

Cases to be covered 1. Hopkins Homes / Cheshire East (Supreme Court, May 2017) 2. Reigate and Banstead BC (High Court, June 2017) 3. Barwood Strategic Land (Court of Appeal, June 2017) 4. Mansell v Tonbridge and Malling BC (Court of Appeal, September 2017) 5. Baroness Cumberlege (High Court, August 2017) 6. Moulton Parish Council (High Court, May 2017) 7. Hayes v City of York Council (High Court, June 2017) 8. Wokingham Borough Council (High Court, July 2017) 9. Verdin (t/a The Darnhall Estate) (HC, August 2017)

Hopkins Homes / Cheshire East Hopkins Homes Ltd v Secretary of State for CLG Cheshire East Borough Council v Secretary of State for CLG [2017] UKSC 37 (10 May 2017) Two conjoined appeals, both residential developments (26 dwellings in Suffolk and 146 in Cheshire) Councils appealing to Supreme Court in both cases Key issues for determination by Supreme Court: Narrow issue: The correct interpretation of the words "relevant policies for the supply of housing" in paragraph 49 of the NPPF Wider issues: The application of the tilted balance in NPPF paragraph 14 and the legal status of the NPPF and its relationship with the statutory development plan

Hopkins Homes / Cheshire East Paragraph 14 of the NPPF: At the heart of the NPPF is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking For decision-taking this means: where the development plan is absent, silent or relevant policies are outof-date, granting permission unless: - any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or - specific policies in this Framework indicate development should be restricted.

Hopkins Homes / Cheshire East Paragraph 49 of the NPPF: Housing applications should be considered in the context of the presumption in favour of sustainable development. 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. Q: What are policies for the supply of housing? Narrow: Policies dealing only with numbers and distribution of new housing Wider: Policies providing positively for the supply of new housing and other policies whose effect is to restrain supply by restricting development

Hopkins Homes / Cheshire East Hopkins Homes: Inspector - narrow interpretation High Court - wider interpretation Court of Appeal wider interpretation Cheshire East: Inspector - wider interpretation High Court narrow interpretation Court of Appeal wider interpretation Court of Appeal strongly rejected the narrow interpretation: policies may serve to form the supply of housing land either by creating it or by constraining it. The words for the supply of housing should be read as affecting the supply of housing.

Hopkins Homes / Cheshire East Key points from Supreme Court judgment: The primary purpose of paragraph 49 is to act as a trigger to the operation of the tilted balance in paragraph 14. Policies for the supply of housing are housing supply policies. No justification for substituting the word affecting. Although other groups of policies may affect the operation of housing supply policies, that does not make them policies for the supply of housing. Important question is not how to define individual policies, but whether the result is a five-year supply of housing. If there is not, it does not matter which policies are to blame; the shortfall is enough to trigger the 'tilted balance' in paragraph 14.

Hopkins Homes / Cheshire East Key points from Supreme Court judgment: Paragraph 14 is not concerned solely with housing policy. It also applies to other forms of development covered by the development plan. Policies relating to other forms of development may be found to be out of date, triggering the 'tilted balance'. The only difference is that in those cases there is no equivalent test to the paragraph 49 test of a five-year supply for housing. If a policy is out of date then the weight to be given to it is a matter for the decision maker. It does not mean that the policy is to be ignored or that it should be given minimal weight.

Hopkins Homes / Cheshire East Key points from Supreme Court judgment: Weight to be given to other restrictive policies is a matter of planning judgement for the decision maker. Weight will need to be judged against the need for development. If tilted balance applies then other restrictive policies may need to be given less weight. This was the key point in the outcome of the two appeals. References to policies in this Framework in para. 14 are to be read as including the related development plan policies, so even if tilted balance applies development plan policies can still indicate development should be restricted.

Hopkins Homes / Cheshire East Outcome of appeals: Both appeals dismissed by the Supreme Court. Hopkins Homes: The Inspector had correctly adopted the narrow interpretation, but his approach was open to criticism. He had attached particular weight to a policy he considered to be up to date, but should have recognised as part of the paragraph 14 tilted balance exercise that its weight might need to be reduced. Cheshire East: The Inspector had wrongly adopted the wider interpretation, but that did not detract from his reasoning. He had been entitled to conclude that the weight to be given to restrictive policies was reduced and his final conclusion reflected the tilted balance in paragraph 14.

Reigate and Banstead BC Reigate and Banstead BC v SoS for CLG and Amtrose Ltd [2017] EWHC 1562 (Admin) (27 June 2017) SoS granted permission on appeal for up to 46 dwellings in Horley, Surrey. Challenged by Council on ground that the Inspector failed to properly apply s.38(6) and also misapplied the NPPF. Secretary of State accepted that the Inspector had made an error and did not contest the challenge.

Reigate and Banstead BC The law and guidance Section 38(6) Planning and Compulsory Purchase Act 2004: 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. Paragraph 12 NPPF: Proposed development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise.

Reigate and Banstead BC Key points from judgment: Ground 1 An up-to-date development plan will allocate and promote sustainable development. Therefore, a proposal which complies with the development plan will constitute sustainable development. It will benefit from the statutory presumption in s.38(6) as well as the presumption in favour of sustainable development in paragraph 14. The presumption in favour of sustainable development does not extend to a proposal which conflicts with the development plan. NPPF paragraph 12 provides that such a proposal should be refused unless material considerations indicate otherwise.

Reigate and Banstead BC Key points from judgment: Ground 1 Where the development plan is absent, silent or relevant policies are outof-date, the second bullet point of NPPF paragraph 14 requires a different approach to be taken (n/a in this case). NPPF paragraph 14 exhaustively defines the circumstances in which a presumption in favour of sustainable development can arise. There is no general presumption outside paragraph 14. The Inspector failed to explain how he had concluded that the proposal was sustainable development when it was not in accordance with the development plan.

Reigate and Banstead BC Key points from judgment: Ground 2 Numerous parts of the Inspector's decision demonstrated that he had reversed the statutory presumption in s.38(6) and applied a presumption in favour of sustainable development. The Inspector s role was to take the development plan and apply it to the proposal in accordance with s.38(6). His unorthodox approach was at odds with both s.38(6) and the NPPF and was unlawful. Outcome Inspector s decision quashed.

Barwood Strategic Land Barwood Strategic Land II LLP v East Staffordshire BC and SoS for CLG [2017] EWCA Civ 893 (30 June 2017) SoS granted outline permission on appeal for up to 150 dwellings in Burton upon Trent. Quashed by High Court following a challenge by East Staffordshire BC. The developer appealed to the Court of Appeal on five grounds. Key question: Did the Inspector misdirect himself in performing the task set for him under s.38(6) PCPA 2004 by mistaking the meaning and scope of government policy for the presumption in favour of sustainable development in the NPPF?

Barwood Strategic Land Previous cases inconsistent: Wychavon District Council [2016] EWHC 592 (Admin): It is quite wrong to say that a presumption in favour of sustainable development does not exist in the NPPF outside paragraph 14. Cf: Cheshire East Borough Council [2016] EWHC 571 (Admin): The Government s policy as to the striking of that balance is to be found in paragraph 14 of the NPPF, not elsewhere in the NPPF. Trustees of the Barker Mill Estates v Test Valley BC [2016] EWHC 3028 (Admin): The presumption in favour of sustainable development is solely contained within paragraph 14 of the NPPF.

Barwood Strategic Land Inspector s decision: Identified that the development would be contrary to three of the strategic policies in the Local Plan. Conclusions on impacts broadly favourable to the developer. Attached particular weight to the provision of affordable housing. Recognised that schemes that conflict with the development plan should be refused unless material considerations indicate otherwise. Determined that the NPPF was an important material consideration. Concluded that the first decision-taking bullet point in paragraph 14 (approving proposals that accord with the development plan) did not apply.

Barwood Strategic Land Concluded that the second bullet point (the tilted balance ) did not apply either, the policies in the Local Plan being up-to-date. Therefore, neither of the two bullet points in the decision-taking part of paragraph 14 applied. BUT went on to say: Nevertheless the presumption in favour of sustainable development is a golden thread that runs throughout the Framework. As a result, where a proposal is contrary to the development plan this presumption is a material consideration that should be taken into account. i.e. Applied the Wychavon District Council approach.

Barwood Strategic Land Key points from judgment: Approach in Cheshire East and Barker Mill Estates followed. Paragraph 14 of the NPPF is the embodiment of the presumption in favour of sustainable development. There is no other presumption in favour of sustainable development in the NPPF, either explicit or implicit, and no other golden thread. Only sensible way to read the Inspector's decision was that having concluded that the proposal was a sustainable development, he then applied the presumption in favour to it, leading to the grant of permission. This was an error of law that went to the heart of the Inspector's conclusions.

Barwood Strategic Land Key points from judgment: One thing to define what may amount to sustainable development. Another to define the circumstances in which a presumption in favour of sustainable development arises. It is only paragraph 14 which identifies the circumstances in which a presumption arises. Once the Inspector had worked through and discounted the presumption in favour of sustainable development in paragraph 14 of the NPPF the presumption had no further part to play in his decision.

Barwood Strategic Land Key points from judgment: A development which does not benefit from the presumption in favour of sustainable development may still merit the grant of planning permission. Equally, a development which does have the benefit of the presumption may still be found unacceptable. This is the territory of planning judgement and the s.38(6) exercise. The fact that the Cheshire East and Barker Mill Estates judgments were not provided to / available to the Inspector did not mean that he had not made an error.

Barwood Strategic Land Outcome of appeal: Appeal dismissed by the Court of Appeal. The Inspector made a material error of law in concluding, in effect, that there was a countervailing policy presumption (the presumption in favour of sustainable development) competing with the s.38(6) statutory presumption in favour of the development plan.

Mansell v Tonbridge and Malling BC Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 (8 September 2017) Judgment of the Court of Appeal in Barwood v East Staffordshire entirely supersedes several High Court judgments, including Reigate and Banstead Borough Council. No longer necessary or appropriate to cite any of the first instance judgments in which the meaning of the presumption in favour of development has been considered.

Cumberlege v SoS for CLG Baroness Cumberlege of Newick v SoS for CLG [2017] EWHC 2057 (Admin) (4 August 2017) SoS granted outline permission for 50 dwellings in Newick, East Sussex. S.288 challenge on two grounds, including that the SoS had erred in his treatment of saved Policy CT1 of the Lewes District Local Plan. LDLP adopted in 2003 covering the period to 2011. Policy CT1 gave effect to development boundaries outside of which planning permission would generally not be granted. It also highlighted the importance of retaining the open character of the countryside. SoS decided that Policy CT1 was out of date and accordingly applied the tilted balance in paragraph 14 of the NPPF.

Cumberlege v SoS for CLG The problem: Approximately 8 weeks earlier the Secretary of State had agreed with his Inspector's conclusion that Policy CT1 was up-to-date. SoS (first defendant) realised error and submitted to judgment, recognising that he should have taken his earlier decision into account and that this was an error of law. The developer (second defendant) disagreed and made extensive and varied submissions, resulting in a remarkably long judgment. Included that the earlier decision had not been provided to the Inspector.

Cumberlege v SoS for CLG Key points from judgment: Law requires reasonable consistency in the exercise of administrative discretion by public authorities in order to avoid arbitrariness. That does not mean that policies may not be departed from in particular cases; but unlawful to do so without a reason. It may be unreasonable not to have regard to previous decisions, which are capable of being material considerations. Where there is disagreement with a previous decision that is closely related then reasons must be given for departing from it.

Cumberlege v SoS for CLG Key points from judgment: BUT: Previous decisions are not legal precedents that have to be distinguished. Not in the public interest to add a requirement to address every previous decision placed before the decision maker whenever they provide reasons for a decision. No requirement to refer in the reasons for a decision to every material consideration that has been taken into account in reaching it. Whether a previous decision that has not been supplied to the decision maker is one that a reasonable decision maker would have taken into account depends on the circumstances.

Cumberlege v SoS for CLG Key points from judgment: Difference between the position that applies until the end of an inquiry or hearing and the position that applies after that, until the decision is issued. BUT: Secretary of State and his inspectors are not required to be cognisant of all appeal decisions, which would be unreasonable. Nor is the Secretary of State even required to be aware of his own decisions (as opposed to those made with the assistance of an Inspector).

Cumberlege v SoS for CLG Outcome of appeal: SoS should have taken reasonable steps to ensure that his decisions on the same class of case in the same district were consistent. Ascertaining whether there had been any such previous decisions after the inquiry closed would not have been difficult and the SoS had acted unreasonably. Previous decision was neither irrational nor so different that it could not be taken into account. The failure to take it into account undermined public confidence and was an error of law. Decision would not necessarily have been the same had the error not been made. The tilted balance in paragraph 14 would not have applied. The decision would be quashed.

Other cases Moulton Parish Council v SoS for CLG [2017] EWHC 1047 (Admin) (9 May 2017) Tilted balance in NPPF paragraph 14 identified as main issue by Inspector; accepted by SoS. SoS made no mention of it in decision. Although not always required to spell out, in this case was an important factor that should have been addressed in the decision.

Other cases R. (o.a.o. Hayes) v City of York Council [2017] EWHC 1374 (Admin) (9 June 2017) Para. 141 NPPF: Local planning authorities should require developers to record and advance understanding of the significance of any heritage assets to be lost and to make this evidence publicly accessible. However, the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted. Held: Only makes sense if interpreted as should not be a decisive factor. An uneasy interpretation?

Other cases Wokingham Borough Council v SoS for CLG [2017] EWHC 1863 (Admin) (20 July 2017) Para. 47 NPPF: To boost significantly the supply of housing, local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5%...Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20%. Inspector acted unlawfully in applying an additional 10% lapse rate.

Other cases Verdin (t/a The Darnhall Estate) v SoS for CLG [2017] EWHC 2079 (Admin) (10 August 2017) Para. 203 NPPF: Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Para. 206 NPPF: Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.

www.burges-salmon.com This presentation gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content. Burges Salmon 2017