Tuesday, September 10, 2013

The 'presumption' and the Taporley Appeal


Last week the decision was made by the Secretary of State to allow development of 100 houses in the village of Taporley despite the appeal inspector having recommended that permission be refused due to the harm that could be done to the neighbourhood planning process. Taporley  is a “front runner" in the neighbourhood planning process although no draft plan had been produced at the time of the appeal.

The Secretary of State had 'recovered' the decision on grounds of legal complexity. This appears to have been the concern about the weight to be given to an emerging neighbourhood plan. In the event the inspector gave  substantially more weight to the issue of “ prematurity" than the Secretary of State. However, and importantly, the inspector also gave weight to the impact that such a decision would have on other parishes and  neighbourhood forums were such a locally important development to be permitted that would prejudice  (in his words “crush") and demotivate. This  impact beyond the position that Taporley  was not tackled in an intelligible and adequate way by the Secretary of State despite this apparently being the reason for the 'call-in'.

The other matter that was dealt with in an inadequate  and legally doubtful way by the Secretary of State was the question of sustainability. Given that it is Government  advice set out in the Framework  that there is a 'presumption in favour of sustainable development' it is extraordinary that not only inspectors but the Secretary of State himself do not reach a finding as to whether a development  benefits from this presumption. The most that  this inspector was prepared to say is that the presumption is “engaged", but that was in the context of paragraph 14 and the absence of a five-year land supply. What the inspector had actually found was that the development was only on the positive end of the sustainability spectrum if, and only if, the strategic spatial planning aspects were left to one side. There were many indications that  were  strategic spatial planning factors to be brought into the equation,  the location and scale of development would be regarded as “unsustainable".  The Secretary of State  could be accused of dissembling in relying on a conclusion that was reached by the inspector on his consideration of only  a few of the 'material considerations'.  It could not reasonably have been the inspector's intention in “leaving to one side" the very material consideration of the sustainability of the development in terms of location and scale, to leave this out of the equation when the decision was actually reached through section 38 (6). The difficulty for the Inspector  was that the planning framework (local plan and neighbourhood plan)  was not at a stage where the sustainability of the development  had  recently been addressed. It was relying on an earlier assessment that Taporley was not one of the most sustainable locations (classified as Tier 2 even before sustainability rose in prominence through the Framework). In fact the inspector was critical of the public transport services (and the use of best and most versatile land) as matters to be taken into account when the presumption was fully engaged.

Since we had the Inspector (Ref 2169598) finding that to  benefit from the presumption a development should be seen to “consume its own smoke", we have a number of inspectors who fudge the issue and now the Secretary of State apparently confirming that the presumption is in favour of development with sustainability being an option. The impact  of this decision on neighbourhood planners will be profound. Those faced with planning applications  within the 2 years before even a draft plan is likely to be produced might not consider it worth starting. All those who are in the process should put their foot down on the accelerator  and hope that the decision at Taporley  is successfully challenged (the statutory review under section 288).

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