Permission to appeal was granted with a view to resolving the inconsistent High Court decisions of Wychavon DC v Secretary of State for Communities and Local Government  EWHC 592 (Admin) and Cheshire East BC v Secretary of State for Communities and Local Government  EWHC 571 (Admin) (see also Trustees of Barker Mill Estates v Test Valley Borough Council  EWHC 3028 (Admin)).
Dismissing the appeal, the court held, in line with the latter line of cases, that in granting outline planning permission for a development that was inconsistent with the local plan, the inspector had misdirected himself under section 38(6) by misunderstanding the presumption in favour of sustainable development in the NPPF.
The court confirmed that the statutory presumption in favour of the development plan in section 38(6) cannot be displaced by any purported self-standing presumption in favour of sustainable development. There is no other presumption in favour of sustainable development other than that described in paragraph 14 NPPF. Once that paragraph has been worked through and a conclusion has been arrived at that the proposed development is inconsistent with the local plan, there is no presumption remaining which can be relied upon in favour of the grant (because in those circumstances paragraph 12 NPPF introduces a “reverse presumption”).
The Court further clarified that when the section 38(6) duty is lawfully performed, a development which does not earn the “sustainable development presumption”, and which does not, therefore, have the benefit of the “tilted balance” in NPPF paragraph 14, might still merit a grant of planning permission. Similarly a development which does have the benefit of the “tilted balance” may be found unacceptable and planning permission for it refused. The court decided, in line with the recent cases, that these are questions of planning judgment, where the court will not tread except to apply relevant principles of public law.
William Rose, Senior Associate at Sharpe Pritchard in the administrative law and planning law teams, acted for the Council.
A transcript of the judgment (Barwood Strategic Land II LLP V (1) East Staffordshire Borough Council (2) Secretary of State for Communities & Local Government  EWCA Civ 893) can be found at this link.
Sharpe Pritchard also acted for the local authorities in the recent leading Supreme Court case on housing supply and sustainable development (Cheshire East and Suffolk Coastal). See our article at this link.
This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published.