Sustainability and Legal Precedent

Peter Village QC Thirty Nine Essex Street

The NPPF • Contains economic, environmental and social

planning policies • Must be taken into account in the preparation

of local and neighbourhood plans • Is a material consideration in the

determination of planning applications • At its heart is a presumption in favour of

sustainable development – BUT is economic growth really the priority focus

in the NPPF?

The NPPF • Paragraph 11.

– Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.

• Paragraph 12. – This National Planning Policy Framework does not change

the statutory status of the development plan as the starting point for decision making. Proposed development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise. It is highly desirable that local planning authorities should have an up-to-date plan in place.

The importance of the development plan

• Planning Authorities must have regard to the provisions of the development plan, so far as is material to the application, and to any other material considerations (s.70 Town and Country Planning Act 1990);

• Determination of planning applications must be made in accordance with the development plan, unless material considerations indicate otherwise (s.38(6) Planning and Compulsory Purchase Act 2004);

• Planning should be genuinely plan-led (NPPF);

• Local Planning Authorities should approve applications which accord with an up-to-date development plan without delay (NPPF);

Section 39 of the Planning and Compulsory Purchase Act 2004

• Sustainable development has now received statutory recognition.

• Section 39: – Requires persons or bodies responsible for

exercising any function in relation to local development documents...

– To exercise that function with the objective of contributing to the achievement of sustainable development

What is sustainable development?

• World Commission on Environment and Development definition (1987): “development that meets the needs of the

present without compromising the ability of future generations to meet their own needs”

The NPPF • Under the heading “Achieving Sustainable

Development”, the NPPF refers to: – Resolution 42/187 of the UN General Assembly: “meeting the needs of the present without compromising the

ability of future generations to meet their own needs” – UK Sustainable Development Strategy: Securing the

future • Sets out five guiding principles of sustainable development

1. Living within the planet’s environmental limits 2. Ensuring a strong, healthy and just society 3. Achieving a sustainable economy 4. Promoting good governance 5. Using sound science responsibly

The NPPF

• Why is the concept of sustainable development important to the NPPF?

• The Framework: – Introduces the presumption in favour of

sustainable development which should be seen as the “golden thread” running through both:

• Plan making • Decision taking

Paragraph 7, NPPF • Three dimensions to sustainable development give rise to the need for the

planning system to perform a number of roles:

– an economic role – contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure;

– a social role – supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community’s needs and support its health, social and cultural well-being; and

– an environmental role – contributing to protecting and enhancing our natural,

built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy.

Paragraph 14, NPPF • Plan making:

– LPAs should positively seek opportunities to meet the development needs of their area

– Local plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:

• Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole; or

• Specific policies in the NPPF indicate development should be restricted.

Paragraph 14, NPPF • Decision taking (unless material

considerations indicate otherwise): – Approving development proposals that accord

with the development plan, without delay. – Where the development plan is absent, silent or

relevant policies are out of date, granting planning permission unless:

• Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF as a whole; or

• Specific policies in the NPPF indicate development should be resisted.

Paragraph 15, NPPF

“Policies in Local Plans should follow the approach of the presumption in favour of

sustainable development so that it is clear that development which is sustainable can be approved without delay. All plans should be based upon and reflect the presumption in favour of sustainable development, with

clear policies that will guide how the presumption should be applied locally.”

What does this mean? • Presumption in favour of sustainable development • Should development be approved unless it can be

shown that any harm outweighs the benefits? OR • Is the sustainability of a development the starting point? Further… • Is there a presumption AGAINST unsustainable

development?

The Effects of the NPPF

• A simplified planning regime? OR

• Confusion and complexity?

In a Pickle?

Planning Inquiries and the NPPF

• Has the Planning Inspectorate’s approach to determining planning inquiries changed under the NPPF?

• Decisions must still to be made impartially:

– Statutory tests – Policy tests

Contradictory policy Development plans frequently contain a number of policies which pull in different directions. Islington LBC v Secretary of State for Communities and Local Government [2012] EWHC 1716 (Admin): • Section 38(6) does not simply require a judgment about

whether a proposed development accords with individual policies.

• Paragraph [53]: “These policies need to be seen as a whole rather than individually since the statutory question in section 38(6) requires a judgment as to whether proposed development accords with the Development Plan, not whether it accords with individual policies, a number of which may pull in a variety of differing directions when applied to a particular proposal.”

Contradictory policy (2) • The Court of Appeal in R (on the application of

TW Logistics) v Tendring District Council and Anglia Maltings (Holdings) Ltd [2013] EWCA Civ 9: – emphasised that a local plan is to be objectively

construed – the public is, in principle, entitled to rely on it as it

stands without having to investigate its provenance and evolution

– Where different parts of the local plan point in different directions it is for the planning authority to decide which policy should be given greater weight in relation to a particular decision.

Contradictory policy (3) • Unfortunately, the Court of Appeal in R (on the application of

Manchester Ship Canal Company Limited) v Environment Agency [2013] EWCA Civ 542 failed to answer whether a policy must: – always have one uniquely correct meaning for the court to ascertain, or – A decision maker may give the policy a meaning it is legally capable of

bearing.

• However, administrative decision makers can no longer assume that approaching difficult policy questions can be justified by an unchallengeable consideration of their implied meaning

• The courts are showing increased willingness to intervene where

they consider it appropriate

Out of date policy • Hunston Properties Ltd v SSCLG and St Albans City

and District Council [2013] EWHC 2678: – Inspector dismissed the appeal of HPL following the

Council’s refusal to grant planning permission for a development comprising 116 dwellings on Green Belt land abutting St Albans.

– The Council argued that this was inappropriate development for which no very special circumstances existed.

– HPL argued that such very special circumstances did exist, including:

(1) a policy vacuum so far as housing requirements were concerned following the revocation of the EEP; and (2) the Council’s failure to identify a 5 year supply of deliverable housing in accordance with paragraph 47 of the NPPF.

Out of date policy (2)

• Could the Council’s figure of a minimum annual average development for St Albans of 360 dwellings (the figure identified in the now revoked Development Plan for the East of England (EEP)) be relied upon? – No new Local Plan which gave effect to the NPPF – The Council’s cabinet passed a resolution

adopting the figure of 360 dwellings taking into account various constraints to development yet did not identify an objective need for the district

Out of date policy (3) • HPL argued that independent and objective evidence (from the

Department for Communities and Local Government) confirmed annual and projected housing needs for St Albans of 688 households per annum.

• Inspector concluded that appropriate housing target was 360 dwellings per annum (meaning no identified unmet housing needs capable of constituting very special circumstances)

• On appeal, HPL’s application was upheld and the Inspector’s Decision Letter quashed:

– See paragraph 47 of the NPPF… – It is not open for an LPA or Inspector to reach a conclusion as to very special

circumstances based on a figure which did not reflect the fully, objectively assessed needs for market and affordable housing applicable at the time.

• The case is in the Court of Appeal this week...

Post-NPPF planning system: simple or complex?

– Significant issues that will continue to be litigated...

• Contrary policy within NPPF • Local policy contrary to NPPF • Out of date policy

– Central issue of policy interpretation • Tesco Stores Ltd v Dundee CC [2012] UKSC 13 • R (on the application of TW Logistics) v Tendring

District Council and Anglia Maltings (Holdings) Ltd [2013] EWCA Civ 9

Sustainability appraisals • Enable the social, environmental and economic effects of planning

documents to be assessed as they are being prepared. There is a legal requirement to undertake a sustainability appraisal of Development Plan Documents.

• Provide a means of translating sustainability objectives for an area

into sustainable planning policies that reflect global, national, regional and local sustainability problems and issues.

• Should only focus on what is needed to assess the likely significant effects of the Local Plan (the environmental, economic and social impacts that are likely to be significant).

• Content of an emerging strategy is appraised against a series of

objectives (usually starting with the publication of a scoping report to decide upon the extent and level of detail required in the appraisal)

Sustainability appraisals (2) Must incorporate the requirements of the SEA Directive (2001/42/EC) on the “assessment of the effects of certain plans and programmes on the environment”:

– “an outline of the contents, main objectives of the plan or programme and relationship

with other relevant plans and programmes” (Annex 1(a));

– “the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme” (Annex 1(b));

– “the environmental characteristics of areas likely to be significantly affected” (SEA Directive Annex 1(c));

– “any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directives 79/409/EEC [Special Protection Areas under the Birds Directive] and 92/43/EEC” (Annex 1(d));

– “the environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation” (Annex 1(e)).

Sustainability appraisals (3)

• Paragraph 165 of the NPPF provides further guidance on the role and content of sustainability appraisals:

“…A sustainability appraisal which meets the requirements of the European Directive on strategic

environmental assessment should be an integral part of the plan preparation process, and should consider

all the likely effects on the environment, economic and social factors…”

Sustainability appraisals (4)

• Cogent Land LLP v Rochford DC [2012] EWHC 2542 (Admin)

• R (Wakil) v Hammersmith and Fulham LBC [2012] EWHC 1411

• NB: see also the discussion of the SEA process in Cala Homes (South) Limited v Secretary of State for Communities and Local Government [2011] EWCA Civ 639

Sustainability appraisals (5) • DB Schenker Rail (UK) Ltd v Leeds City Council

[2013] EWHC 2865 (Admin): – A recent consideration of the content of SAs – The sustainability assessment clearly addressed limited

areas of policy alongside the other development plan documents that it referred to, which considered broader issues such as housing and employment opportunities.

– The Plan did not have to consider alternatives provided that it was part of a series of documents which, acting cumulatively, did so.

– Rejection of alternative uses, and adoption of preferred approach must be fully explained in a document fully and properly identified in the sustainability assessment, and freely available to consultees

Defects in environmental appraisals

• The case law suggests that defects in an environmental report can usually be cured.

• Local authorities can usually justify their choice and satisfy the requirement to consider alternatives even if that is by reference to a document coming at a later stage in the process or forming part of a series of documents which acts cumulatively.

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