Barwood Homes recent application to have the earlier High Court ruling overturned which clarifies the concept that the presumption in favour of sustainable development is “a golden thread” running through the NPPF as being “holy misconceived” has now been clarified by the Court of Appeal.
The Court of Appeal has stated that the “inspector made a material error of law, not merely an error of form but an error of substance, in concluding, in effect, that there was a countervailing policy presumption – namely, the ‘presumption in favour of sustainable development’ – competing with the statutory presumption in favour of the development plan.”
The ruling provides further clarity on this particular issue which we reported on in our article 5 Dec 2016 and which highlighted this matter has been interpreted in different ways by lower Courts.
It would appear to us that the Court of Appeal judgement now clarifies this confusing situation and that the concept of “sustainable development” has in effect been separated from the NPPF objective relating to the “presumption in favour of sustainable development.” The matter of “the presumption in favour of sustainable development” would appear to be governed by paragraph 14 of the NPPF and not on a standalone basis as a separate material consideration.
Other commentators are suggesting that the ruling by the Court of Appeal may itself open up additional opportunities for speculative housing planning applications. This is on the basis that in some circumstances development might be considered acceptable if its sustainability were sufficient to outweigh other conflicts with the objectives and policies of a relevant Development Plan.
We are sure that whilst some clarity has been brought about by this very recent Court of Appeal ruling, options for promoting a housing development case based around an alternative to challenging a five year housing land supply evidence may very well be utilised focused on just the merits of the sustainability case.
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