East Staffordshire Borough Council v Secretary of State for Communities & Local Government & Anor

Paragraph 14 of the National Planning Policy Framework provides the principal process for deciding whether the presumption in favour of sustainable development applies. Where a proposal conflicts with an up-to-date Local Plan, the presumption is rebutted and the starting point is that permission should be refused. A residual discretion remains under section 38(6) of the Planning and Compulsory Purchase Act 2004, but it is narrow in principle and must be supported by substantial, objective and demonstrable reasons. A decision-maker approving development contrary to the Local Plan must address the particular reasons for the conflict and explain why they are outweighed. A general assertion that the development is sustainable, or that the plan has been balanced, is inadequate.

The claimant challenged an Inspector’s decision allowing an appeal against refusal of planning permission for up to 150 dwellings at Red House Farm, Burton upon Trent. The proposed development conflicted with Strategic Policies 2, 4 and 8 of the East Staffordshire Local Plan, although the Inspector found various economic, social and environmental benefits.

The Inspector relied on Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin) to apply a broader presumption in favour of sustainable development outside paragraph 14 of the National Planning Policy Framework. The claimant argued that this approach was legally erroneous and that the Inspector had failed to assess the reasons for the Local Plan conflict.

1. The claim was allowed and the Inspector’s decision was quashed.
2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 makes the Local Plan the starting point. Paragraphs 12 and 14 of the National Planning Policy Framework provide the principal framework for applying the presumption in favour of sustainable development. Where the proposal conflicts with relevant policies in an up-to-date Local Plan, the paragraph 14 presumption has been rebutted and paragraph 12 indicates that permission should be refused.
3. Paragraph 14 is not wholly exhaustive. Section 38(6) cannot be fettered by policy guidance, and the statutory qualification referring to other material considerations leaves a residual discretion to approve a proposal inconsistent with the Local Plan. That discretion is exceptional in character. The outcome under paragraph 14 should have considerable gravitational pull, and departure requires substantial, objective and readily demonstrable reasons. The precise scope of the exception was left for a case in which it truly arose.
4. The Inspector materially misdirected himself by treating the presumption as continuing to favour approval after accepting the Local Plan conflict. The correct starting point was adverse to permission, not neutral or favourable.
5. The Inspector also failed to address the particular reasons for the conflict with Strategic Policies 2, 4 and 8. A decision-maker who approves a proposal contrary to the Local Plan must explain the weight of those reasons and why the benefits outweigh them. A formulaic statement that the development plan and local views have been balanced is insufficient.
6. The Inspector’s conclusion that the proposal was sustainable could not stand because he had not explained how that conclusion was compatible with the identified conflict with significant Local Plan policies. The court’s decision rested principally on the first two errors.

This was a first-instance judicial review in the Administrative Court. The judgment records the Inspector’s decision of 29 April 2016, which allowed the planning appeal and granted permission. The court allowed the application and quashed that decision.