1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Free-Standing Sustainable Development Assessment a Mistake

In Reigate and Banstead BC v SoS CLG [2017] EWHC 1562 (Admin), Lang, J quashed permission granted on appeal for development on greenfield land intended for release in the development plan only if needed to boost housing land supply (HLS).

The recently-adopted Local Plan provided for almost a 5 year HLS, constrained so as to be unable to meet full objectively assessed need (OAN). Despite its “urban area first” strategy, the Inspector worked on the basis that sustainable development should be approved in the absence of harm.  He found that there was not basis for dismissing it because the proposal would reduce the HLS shortfall against OAN over the plan period and would not significantly prejudice the spatial strategy given its scale (45 homes).

The authority challenged the decision on the basis that the Inspector had inverted the statutory requirement to determine the appeal in accordance with the development plan, subject to material considerations otherwise (s38(6) PCPA 2004).

The judgment identifies ten key propositions for NPPF14 cases, including:

  • The need to distinguish between local and national policies which describe what qualifies as sustainable development (e.g. NPPF 6, 7, 18 to 219) and policies that determine when a presumption in favour of such development arises.
  • That the NPPF 14 exhaustively defines when a presumption in favour of sustainable development can arise. There is no general presumption outside NPPF 14 (applying Trustees of the Barker Mill Estates v SoS CLG [2016] EWHC 3028 (Admin) and Cheshire East BC v SoS CLG [2016] EWHC 571 (Admin)). The Inspector could – in theory – have reached the same outcome by applying the s38(6) starting point but giving in efforts to close the OAN gap greater weight.  However, the judgment implies that in the absence of something significant – such as evidence that local housing stress had worsened substantially since the Local Plan was adopted – the decision would be have been doomed to the same fate.
  • One proposition seems out of kilter with the rest – that the NPPF14 presumption “does not extend to a proposal which conflicts with the development plan“. Although not relevant in Reigate, NPPF14 is explicit that the presumption does extend to such proposals where (1) the development plan is absent, silent or relevant policies are out‑of‑date and (2) any adverse impacts of granting consent would not significantly and demonstrably outweigh the benefits considered against NPPF policies in the round (and no specific restrictive NPPF policies apply – which should now include ‘related’ development plan policies following Suffolk Coastal District Council v Hopkins Homes Ltd & Onr [2017] 1 WLR 1865).

Planning and the General Election: keys to long term success

With the General Election drawing ever closer, planning forms the battleground for a several controversial issues close to voters’ hearts, such as fracking and safeguarding the greenbelt. In particular, persistent difficulties in delivering new housing and infrastructure unite the parties in a common cause. More homes are needed, quickly, together with greater certainty around delivery of supporting infrastructure.

The extent to which the next Government succeeds in solving these problems will be determined by its appetite to grapple with a host of underlying difficulties. These include devising an effective model for land value capture, making the CPO process fit for purpose and addressing the chronic shortfall in local authority resourcing.

Despite obvious distractions elsewhere during this campaign, housing delivery still sits atop the planning agenda, with the manifestos all setting targets and the broad route needed to reach them. The Conservatives will point to steps already taken along this long and winding road – most recently through the Neighbourhood Planning Act 2017 and its predecessor the Housing and Planning Act 2016. Similarly, the Housing White Paper affords us the rare luxury of a detailed annex to the aspirations commonly found in (deliberately) loosely drafted manifesto commitments. Whilst less “radical” than badged, it establishes a framework of policy changes aimed at speeding up housing delivery, through measures such as diversifying the market, getting local plans in place and holding the public and private sectors to account for delivery.

Housing delivery at scale is recognised as being paramount. This requires a commitment to supporting the growth of new towns and garden communities – where the worlds of housing and infrastructure collide most spectacularly. The Liberal Democrats propose at least 10 new garden communities whilst Labour also underline the need to start on a “new generation” of new towns. The current system already supports that drive with the introduction of a potentially significant power in the Neighbourhood Planning Act 2017 allowing Regulations to facilitate the designation of areas as new towns and for development corporations to be established.

Whichever party emerges victorious on 8th June, there is a sense that the keys to long-term success are not entirely in their hands. We are witnessing a shift in emphasis towards the increased role of the public sector as an enabler of development. The extent to which they are willing and able to embrace that role will go a long way towards determining whether the same issues – and proposed fixes – will remain on the planning agenda in 2022.

Valued Landscapes Must Be Something Special

In Forest of Dean District Council v Secretary of State for Communities And Local Government& Anor [2016] EWHC 2429 (Admin), the local authority failed to quash the grant of permission for 95 homes in the open countryside on appeal. The development was in an undesignated landscape area. The authority claimed it was ‘valued’ nonetheless (so engaging NPPF 109 – requiring a starting point of “protection and enhancement” rather than a planning balance).

Out of the ordinary

Valued landscape is that which is “out of the ordinary”, rather than designated or simply popular (Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin)). The Inspector decided there were “no particular landscape features, characteristics or elements that demonstrate that the appeal site is in [landscape assessment] terms representative of the wider landscape i.e. a particularly important example which takes this site beyond representing anything more than countryside in general“. However he also concluded that  ‘valued landscape’ must mean a landscape that is considered to be of value because of particular attributes that have been designated through the adoption of a local planning policy document.

The Secretary of State accepted the claimant’s argument, that this was a misapplication of NPPF 109, but resisted quashing of the decision on the basis that the decision would have inevitably been the same. The developer fought back harder, on the basis that the Inspector properly found the landscape not to be valued because it lacked the necessary attributes, and so approached the NPPF 109 policy lawfully.

The claim was dismissed on the basis that while the Inspector’s phrasing was in places “less than optimal”, he had ultimately properly determined the issue having addressed the critical question of whether the landscape had extra-ordinary aspects taking it beyond ‘mere countryside’. The outcome would therefore have been no different.

The status and effect of valued but undesignated landscape is an increasingly common element of objections to greenfield housing schemes. Understanding whether there is any underlying objective basis for local perception of value is crucial to deal properly with these issues.