Barwood Strategic Land II LLP v East Staffordshire Borough Council & Anor

The National Planning Policy Framework contains no free-standing presumption in favour of sustainable development outside paragraph 14. Paragraph 14 both defines the presumption and states the circumstances in which it operates. National policy remains a material consideration, but it does not displace the statutory priority given to the development plan under section 38(6).

Where the paragraph 14 tilted balance is not engaged, planning permission may still be granted contrary to the development plan if other material considerations justify that result. The decision-maker must, however, perform the statutory planning balance without treating a wider policy presumption as a factor favouring development.

Barwood Strategic Land II LLP appealed against Green J’s order, [2016] EWHC 2973 (Admin), allowing the council’s application under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s grant of outline permission for up to 150 dwellings.

The inspector accepted that the proposal conflicted with three recently adopted local-plan policies. He also accepted that the authority had a five-year housing-land supply, so that the decision-taking balance in paragraph 14 of the National Planning Policy Framework was not engaged. Nonetheless, relying on Wychavon District Council v Secretary of State for Communities and Local Government, he treated a wider presumption in favour of sustainable development as a material consideration and granted permission.

The central issue was whether that approach misdirected the inspector in carrying out the statutory planning balance.

1. Appeal dismissed. Lindblom LJ, with whom Underhill and Gross LJJ agreed, held that the inspector had made a material error of law. The error vitiated the grant of permission, and there was no basis to withhold relief.

2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives priority to the development plan. The National Planning Policy Framework is an external material consideration. It has no statutory force and cannot alter the statutory status of the development plan.

3. Paragraph 14 of the Framework gives a complete account of the policy presumption in favour of sustainable development. It is the relevant “golden thread” for plan-making and decision-taking. There is no separate express or implied presumption elsewhere in the Framework. The court therefore rejected the approach in Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin) and approved the competing analysis in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin) and Trustees of the Barker Mill Estates v Test Valley Borough Council and Secretary of State for Communities and Local Government [2016] EWHC 3028 (Admin).

4. A proposal which does not obtain the paragraph 14 tilted balance may nevertheless receive permission if material considerations justify a departure from the plan. Conversely, the tilted balance does not compel permission. Both questions ordinarily involve planning judgment, provided the decision-maker correctly understands and lawfully applies the relevant policy.

5. Here, the inspector had correctly concluded that paragraph 14 did not apply. But he then treated an alleged wider presumption as a countervailing consideration in favour of the proposal. That was a substantive, not merely formal, error in the planning balance. The court could not conclude under section 31(2A) of the Senior Courts Act 1981 that the same outcome was inevitable or highly likely.

• Court of Appeal (Civil Division): Dismissed Barwood’s appeal and upheld the quashing of the inspector’s decision: [2017] EWCA Civ 893.

• High Court, Planning Court: Green J allowed the council’s section 288 application and quashed the inspector’s grant of outline planning permission: [2016] EWHC 2973 (Admin).

• Planning inspector: Allowed Barwood’s section 78 appeal and granted outline planning permission, subject to conditions.