Friday, August 2, 2013

The presumption in favour ofsustainable development

Sustainable Development

In March 2012  the National Planning Policy Framework was finally approved incorporating the presumption in favour of sustainable development described as a golden thread running through both plan making and decision taking. (See paragraph 14 of the Framework). Although  there are a number of ways in which planning decisions can be disseminated (including this and other blogs) I can only refer to a very small sample of decisions taken under the auspices of the Framework. I should mention, that, as a first principle, the Framework  is a material consideration in making planning decisions to be balanced with or against the relevant policies of any development plan. I should also say that policies, including those within the Framework are open to interpretation,  as are planning policies in development plans.

There are 3 decisions that I would like to draw to your attention. The first  is a dismissed appeal for a house on the edge of the village. The Inspector decided that the sustainability of the proposal was a “main issue" and that the house would be unsustainable due to its location outside the village. This was in the face of evidence that the new dwelling would have been closer to the village facilities (including shops and mainline railway station) than many or most of the existing dwellings in the village.  in fact previous inspectors had found it even more remote locations to be sustainable. The challenge to this decision in the High Court  (under section 288) failed as the court found the inspectors reasoning to be adequate. No appeal was made, although in the case of a planning decision adequacy should go beyond some internal coherence and embrace all material considerations. In this case the inspector took a very (very) limited view of what should be the basis of sustainability. It is well understood that the High Court keeps the bar at a high level to prevent frivolous challenges. However, in this case it would appear to be set at a level that would deter many reasonable and sensible challenges to planning decisions taken locally  or at appeal.

The second decision  is the permission granted for 160 houses outside but on the edge of a market town. In this case neither main party (the planning authority and the appellant) discussed the sustainability of the proposals or came to any conclusion as to whether the proposal should or should not benefit from the presumption in the Framework.  The  reasons for refusal,  the evidence presented at appeal and the “main issues" identified by the inspector related to  only to traffic impacts, the protection of trees  and the absence of a 5 (or 6) year housing land supply.  I attended this appeal inquiry with the sole purpose of discussing the sustainability of the proposals.   In the decision letter the Inspector made 2 references to this evidence; accepting the appellant' case that car clubs do not work in suburban areas  (although this would appear to be a question of developer finance) and that  it is Government policy that the sustainability of housing is secured through the building regulations (and not, apparently, the Code for Sustainable Homes). Although the 6 week period to make a challenge has not just expired there does not appear to be any movement in that direction.

The third decision (12/2169598)  related to a mixed development of residential and commercial uses.  Although the  Inspector identified the “main issue" as  the  severity of the residual traffic impacts,   there is within the decision letter a discussion on “sustainability". The inspector  was surprised that little detail or objective evidence was submitted by the parties and suggested that this was because  “...sustainability, in the wider context, is misunderstood.". He found that the location in this case would be sustainable but, “on the other hand, if we seek a Bruntland scenario, whereby today's development would not impose environmental costs of future generations, we are a considerable way from achieving that. There was  certainly no expectation that the development would 'consume its own smoke'. The application does not deal in many specifics and targets, other than the aim to reach  Code for Sustainable Homes Level 4." It is instructive that in 2012 even CHS4  was found by the Inspector to be “unsustainable". This is in stark contrast to the 2nd example although this more stringent decision had been drawn to that Inspector's attention. This 3rd decision goes on to say that in the context of an outline application such matters as the orientation of buildings, that would be crucial, could be  up-rated at the approval of details.

Whilst none of these decisions (or any other that I have examined)  does not discuss the presumption in favour of sustainable development as set out in the Framework, these  few examples show that there is considerable doubt about ability if not competence of inspectors (and the Courts)  to address this concept.  I share the inspector's surprise that the presumption has not been the focus if not the main and determining issue in all current planning decisions.


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