The Secretary of State for Communities and Local Government has allowed more than 1,000 new homes in Droitwich on appeal.  Wychavon District Council’s rejection of the application was overturned on appeal: prematurity was not an appropriate ground of refusal, and the emerging local plan was found to be beset with uncertainties that meant it should be given little weight.

Moreover, the rejection by Wychavon was based on retained policies from its 2006 local plan, which was by now out-of-date.  The Secretary of State agreed with the inspector’s conclusion that the Council was unable to demonstrate a five-year supply of housing. 

The inspector’s report shines a light on an uncertainty that has arisen over the interpretation of the presumption in favour of sustainable development, as in paragraph 14 of the NPPF.  That paragraph requires the granting of permission “where the development plan is absent, silent or relevant policies are out-of-date … unless:

any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or specific policies in this Framework indicate development should be restricted.”

The inspector rejected the view of Lang J in William Davis v SSCLG that paragraph 14 should only apply to development that has already been found to be sustainable.  He preferred the view that paragraph 14 itself provided the mechanism for determining whether development was sustainable, by requiring the adverse impacts to be weighed against the benefits.  According to the inspector, Lang J’s approach was a ‘gloss’ on the policy—there was no ‘extra test’ of sustainability before paragraph 14 could be engaged.

It can’t be often that an inspector explicitly rejects the approach of a High Court judge, but on this occasion the inspector drew on support for his approach in three other High Court decisions: Stratford, Tewkesbury and North Devon.  All of those decisions pre-date William Davis, however.

The Secretary of State simply noted the points made by the inspector, as well as the recent decision of Patterson J in Dartford BC v SSCLG, which rejected elevating William Davis to require a formulaic, sequential approach.  That decision does not appear to have rejected Lang J’s approach outright, however, and the uncertainty remains.

In the end, the distinction does not appear to have been decisive on this occasion.  The scheme was found to be sustainable in economic, environmental and social terms, and the presumption applied.

Jack Robinson