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

The presumption in favour of sustainable development in the National Planning Policy Framework is defined completely by paragraph 14. There is no separate presumption elsewhere in the Framework that can favour a proposal once paragraph 14 is inapplicable. The policy presumption operates within the statutory duty to determine applications in accordance with the development plan unless material considerations indicate otherwise. It neither displaces that duty nor has statutory force.

Permission may nevertheless be granted for development which lacks the policy presumption, following a lawful assessment of material considerations. Conversely, the presumption does not guarantee permission. A material misinterpretation of its scope can invalidate the planning balance. The court should grant relief where it cannot conclude that correcting the error would inevitably leave the decision unchanged, or that a substantially different decision is highly unlikely.

Barwood Strategic Land II LLP sought outline planning permission for up to 150 dwellings on undeveloped land adjoining, but outside, the settlement boundary of Burton upon Trent. East Staffordshire Borough Council, the local planning authority, refused permission. Its subsequently adopted local plan restricted development outside settlement boundaries.

An inspector appointed by the Secretary of State for Communities and Local Government allowed Barwood’s planning appeal. He accepted that the proposal conflicted with three strategic local plan policies and that the council had a five-year housing land supply. He therefore found paragraph 14 of the National Planning Policy Framework inapplicable. Relying on Wychavon District Council v Secretary of State for Communities and Local Government, [2016] EWHC 592 (Admin), he nevertheless treated a wider presumption in favour of sustainable development as a material consideration favouring permission.

On the council’s application under section 288 of the Town and Country Planning Act 1990, Green J quashed the inspector’s decision: [2016] EWHC 2973 (Admin). The Secretary of State supported that application. Barwood appealed. The central issues were whether the inspector had misinterpreted the policy presumption when performing his statutory planning duty and whether the court should nevertheless withhold relief.

Held, unanimously dismissing the appeal, that the inspector had materially misinterpreted the presumption in favour of sustainable development. The court declined to exercise its discretion against quashing his decision.

1. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gave priority to the development plan while requiring other material considerations to be weighed. The National Planning Policy Framework was one such consideration. Its policies had neither statutory force nor the statutory status of the development plan. Policy interpretation was ultimately a question of law; policy application and the assessment of weight ordinarily involved planning judgment ([8]–[14]).

2. Paragraph 14 explained completely both the circumstances in which the policy presumption arose and how it operated. The reference to a golden thread supplied no additional presumption elsewhere in the Framework. The court accepted the analysis in Trustees of the Barker Mill Estates v Test Valley Borough Council and Secretary of State for Communities and Local Government and the approach in Cheshire East Borough Council v Secretary of State for Communities and Local Government. It rejected the wider interpretation in Wychavon District Council v Secretary of State for Communities and Local Government ([31]–[35]; [47]).

3. The proposal conflicted with the recently adopted local plan. The plan was neither absent nor silent, and its relevant housing policies were not out of date. The inspector correctly recognised that paragraph 14 did not apply. His subsequent reliance on a wider policy presumption nevertheless gave the proposal an advantage which the Framework did not provide. Read as a whole, his decision letter showed that this presumption was a substantial factor in the planning balance, rather than merely descriptive shorthand. The error went to the heart of his conclusions and vitiated the decision ([40]–[48]).

4. A proposal lacking the policy presumption could still merit permission through the lawful performance of section 38(6). Equally, the tilted balance could still result in refusal. These assessments remained matters of planning judgment, subject to public law review. Planning decisions involved a flexible exercise of discretion. The court did not determine any requirement of exceptional circumstances for granting permission outside paragraph 14 ([35]; [49]–[50]).

5. The error concerned substance, not form. Without the mistaken countervailing presumption, the inspector might still have granted permission, but he might have reached a different conclusion. The court could conclude neither that the outcome would inevitably have been identical nor that a substantially different outcome was highly unlikely, the question identified under section 31(2A) of the Senior Courts Act 1981. The interests of a lawful decision therefore prevailed, and the order quashing permission remained effective ([51]–[55]).

• Court of Appeal (Civil Division): [2017] EWCA Civ 893 . Unanimously dismissed Barwood’s appeal and upheld the order quashing the inspector’s decision.
• High Court, Administrative Court, Planning Court: Green J, [2016] EWHC 2973 (Admin) . Allowed the council’s application under section 288 of the Town and Country Planning Act 1990 and quashed the inspector’s decision. Granted permission to appeal.
• Planning inspector: On 29 April 2016, allowed Barwood’s appeal under section 78 of the Town and Country Planning Act 1990 and granted outline planning permission subject to conditions.
• Local planning authority: East Staffordshire Borough Council refused outline planning permission on 23 July 2015.