Mr Justice Holgate has handed down judgment in the case of Barker Mill Estates v SSCLG & Test Valley BC  EWHC 3028 (Admin), dismissing the claim. The case gives wide-ranging consideration to the National Planning Policy Framework (NPPF) and in particular the operation of the presumption in favour of sustainable development in paragraph 14.
Holgate J rejected the argument that there was a general presumption in favour of sustainable development contained in the NPPF but outside the scope of paragraph 14, and in so doing departed from the judgment of Coulson J in Wychavon DC v SSCLG  EWHC 592 (Admin) (as Green J also did in East Staffs DC v SSCLG  2973 (Admin)). The Judge concluded that the presumption in favour of sustainable development is solely contained within paragraph 14 of the NPPF.
Mr Justice Holgate said:
“118. Paragraph 14 of the NPPF needs to be read as a whole. The presumption in favour of sustainable development is not just concerned with decision-taking but also with plan-making. In a development plan led system, plan-making provides the context and starting point for decision-making (section 38(6) of PCPA 2004 and see e.g. Cala Homes (South) Limited v Secretary of State for Communities and Local Government  EWCA Civ 639;  JPL 1458 at paragraph 6). The first part of paragraph 14 of the NPPF deals with plan-making before moving on to decision-taking. For plan-making the presumption in favour of sustainable development means that (in summary) LPAs should positively seek opportunities to meet the development needs of their area and should meet objectively assessed needs (with flexibility to adapt to rapid change) unless (i) any adverse impacts of doing so would significantly and demonstrably outweigh the benefits (when assessed against the NPPF overall) or (ii) specific policies in the NPPF indicate that development should be restricted.
119. Thus, development plans are expected to allocate and promote sustainable forms of development. This is of great significance for the second part of paragraph 14 which deals with decision-taking. Once again the presumption in favour of development has two limbs. The submission of Mr. Cahill QC and the judgment in Wychavon focussed solely on the second limb. But the first limb states that development proposals which accord with the development plan should be approved without delay. This is important for several reasons.
120. First, a proposal which accords with a development plan prepared in accordance with the first part of paragraph 14 is likely to represent sustainable development. This is reinforced by paragraph 182 of the NPPF (see paragraph 7 above) which provides that in order to meet the statutory test of "soundness" in section 20(5)(b) before a local plan can be adopted (sections 20(7) to (7C) and 23(2) to (4)), a plan should be (inter alia) "positively prepared" so as to meet objectively assessed development and infrastructure requirements, "consistent with achieving sustainable development". Second, a development which accords with the development plan benefits not just from the positive presumption contained in section 38(6) of PCPA 2004 (summarised in paragraph 12 of the NPPF) but also from the additional presumption in favour of the grant of permission, or "tilted balance", contained in paragraph 14 of the NPPF. Third, it is incorrect to suggest that on the SSCLG's reading of the NPPF the presumption in favour of sustainable development would be confined to the second limb which only applies where there is no statutory development plan, or the development plan is "silent" or "out of date". Most emphatically that is not what paragraph 14 of the NPPF says. Instead, that paragraph has been correctly drafted so as to operate sensibly within the context of the statutory plan led regime and section 38(6) of PCPA 2004.”
Commenting on the East Staffs DC judgment, Holgate J said:
“139. During the hearing the parties drew my attention to the fact that the claim in East Staffordshire Borough Council v Secretary of State for Communities and Local Government was soon to be heard and that the correctness of the Wychavon decision would also be an issue for the Judge to consider. After the draft of this judgment was circulated for corrections, the parties sent me a copy of the judgment delivered by Green J in that case on 22 November 2016 ( EWHC 2973 (Admin)). They also stated that they did not wish to make any submissions on the judgment, but understandably did not suggest that I should disregard it. I have considered his judgment and note that Green J has also disagreed with the conclusion in the Wychavon case that there is a presumption in favour of sustainable development outside the ambit of paragraph 14 of the NPPF (see paragraph 33). The Judge also agreed with the analysis of Jay J in the Cheshire East case. We have arrived at the same conclusion on the key issue I have had to decide under ground 2 in this section 288 challenge.
140. I note also from paragraph 4 of the judgment that the Inspector in the East Staffordshire case suffered the misfortune of having cited to him the Wychavon case but not the Cheshire East case. That selective citation of judicial authority was no more acceptable in that inquiry than it was in the hearing before Coulson J in Wychavon. It led the Inspector to produce a decision letter which allowed the appeal by reference to a general presumption in favour of sustainable development, after having decided that the presumption in paragraph 14 of the NPPF was not engaged. That decision had to be quashed by Green J and, subject to the outcome of any appeal, the section 78 appeal will have to be re-determined. Problems of this kind are not atypical. Why might that be so?
141. One factor would appear to be the ingenuity with which lawyers (whether acting for or against a development proposal) put forward interpretations of policy in challenges before the courts, which judges have to decide unless it can properly be said that the issue does not arise for decision in a particular case. The interpretations offered to the courts are sometimes "strained", as can be seen, by way of example. in the submissions which the Court of Appeal was obliged to consider in Suffolk Coastal District Council v Hopkins Homes Limited & Secretary of State for Communities and Local Government  EWCA Civ 168;  P & CR 1 (eg paragraphs 34-41). Such "excessive legalism" does not accord with the approach to interpretation of policy laid down by the Supreme Court in Tesco Stores plc v Dundee City Council at paragraph 19. The decisions of the courts are then subjected to the same sort of exegetical analysis, not only in submissions to judges in other cases but also in the arguments advanced before planning Inspectors. One can only sympathise with Inspectors at inquiries and hearings up and down the country who have to deal with arguments of this nature.
142. The East Staffordshire case provides a further illustration of the difficulties presented by such legal arguments. Because of both the effect of the Wychavon decision upon the Inspector's reasoning and the basis upon which the developer sought to uphold it in the High Court (see paragraph 20 of the judgment), the judgment examines topics such as whether a "residual discretion" exists outside of paragraph 14 of the NPPF, and the width of that discretion or the degree of exceptionality of that discretion. Fortunately, in the present case Mr Cahill QC did not find it necessary to introduce sophisticated arguments of that kind. Instead, he sought to uphold the reasoning of the Judge in the Wychavon case and therefore I have not needed to go much further than to explain why I have been unable to accept it.
143. But for my part I should make it clear that in interpreting the NPPF and considering the relationship of its policies as "other material considerations" to the policies of the statutory development plan and section 38(6), I see no necessity or justification for decision-makers in the field, whether LPAs or planning Inspectors or the SSCLG, to be concerned with this novel concept of "residual discretion", or whether it is in truth "residual", or the ambit of any such discretion. It is sufficient for them to rely upon the explanation of the relationship between paragraph 14 of the NPPF and section 38(6) which has been set out in established case law, notably by Lindblom LJ in Hopkins (eg. paragraphs 6 to 19). The East Staffordshire case illustrates the risk of this area becoming unnecessarily legalistic. That would hinder rather than promote straight forward and efficient decision-making. I would only add that practitioners should cease to confuse policies of the SSCLG (or LPAs) which describe what qualifies as sustainable development with policies which define particular circumstances in which a presumption in favour of sustainable development applies. Difficulties caused in recent decision-making and litigation would not have occurred if that distinction had been respected.”
The Barker Mill Estates judgment also endorses the approach to the phrases ‘silent’ and ‘out-of-date’ from paragraph 14 of the NPPF given in Bloor Homes v SSCLG  EWHC 754 (Admin) by Lindblom J (as he then was).
A copy of the judgment is at: http://www.bailii.org/ew/cases/EWHC/Admin/2016/3028.html
Richard Honey appeared for the Secretary of State, instructed by the Government Legal Department.