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

Paragraph 14 of the National Planning Policy Framework provides the process for deciding whether development is sustainable where the development plan is absent, silent or out-of-date. It is not a presumption applied only after a separate assessment of sustainability. The decision-maker must assess the economic, social and environmental considerations, then apply the paragraph 14 balance. Development should be approved unless its adverse impacts significantly and demonstrably outweigh its benefits, subject to specific restrictive policies and other material considerations. The assessment involves planning judgment and questions of fact and degree. A section 288 challenge fails where any legal error could not realistically have affected the outcome.

Cheshire East Borough Council applied under section 288 of the Town and Country Planning Act 1990 to quash an Inspector’s decision allowing an appeal against refusal of outline permission for up to 60 dwellings at Kents Green Farm.

The Council argued that paragraph 14 of the National Planning Policy Framework applied only after a separate assessment that the proposal was sustainable development. The Secretary of State and the developer contended that paragraph 14 itself supplied the relevant assessment and balancing process. The central issue was whether the Inspector had adopted the legally correct approach and, if not, whether the error could have affected the decision.

1. Application refused. The Inspector’s decision was not legally flawed and the section 288 claim was dismissed.
2. Where the development plan is absent, silent or relevant policies are out-of-date, paragraph 14 of the National Planning Policy Framework requires the proposal to be assessed against the Framework as a whole. The decision-maker must consider the economic, social and environmental dimensions and balance the resulting benefits and adverse impacts.
3. Paragraph 14 is concerned with process, not an anterior outcome. It determines whether the proposal constitutes sustainable development. There is no requirement for a separate or free-standing assessment before paragraph 14 is applied. The presumption operates as a tilted or weighted balance in favour of the proposal, but remains rebuttable where adverse impacts significantly and demonstrably outweigh the benefits.
4. The exercise remains one of fact and degree. The strength of the benefits affects how readily the presumption may be displaced. Material considerations may justify refusal, and specific policies restricting development may readily rebut or dilute the presumption.
5. The court respectfully disagreed with the interpretation of paragraph 37 in William Davis Ltd v SSCLG [2013] EWHC 3058 (Admin), although that passage was not essential to the decision. The approach in Wenman v SSCLG [2015] EWHC 1663 (Admin) was likewise not accepted insofar as it contemplated a free-standing assessment outside paragraph 14.
6. In any event, the Inspector had found that the planning considerations favoured the development. Even on the alternative approach advanced by the Council, there was no real possibility of a different result, applying Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 and Simplex G.E. (Holdings) v SSE [1989] P&CR 306.

First-instance application under section 288 of the Town and Country Planning Act 1990. The application to quash the Inspector’s decision was refused.