Not in accordance with the local plan

The application for planning permission is inconsistent with, not in accordance with, the local plan. So there is no applicable presumption in favour of sustainable development, and no presumption in favour of the grant of planning permission. The local plan accords with the principle of localism. We live in an age of plan-led planning, a transparent, predictable, and efficient system. So planning permission should be refused.

However, that is not the end of the story. There may be other relevant material considerations justifying a departure from the local plan. There may be no presumption in favour of sustainable development. The proposed development may not be technically ‘sustainable’. But planning always involves an element of policy and value judgment; there is always a residual flexible discretion in the decision maker.

The issue is the scope of the residual discretion. In principle a departure from the local plan could bring an element of uncertainty and unpredictability into the system. Therefore the scope of the discretion should be limited, carrying a high degree of substantial, objective, evidence-based reasoning, a really strong planning case indeed.

Examples of evidence-based submissions which might be made, and which might be successful and withstand legal challenge before the inspector or the judge, readily spring to mind. In practice each and every case will be to a considerable extent fact-specific, the outcome depending largely on the particular merits or otherwise.

The local plan may be out of date. In a constantly changing society the local plan has a sort of inevitable inbuilt obsolescence. A new white paper, new legislation, new regulations, a revised National Planning Policy Framework, a marked change in the market conditions, all might have a substantial impact not anticipated or provided for in the local plan.

A housing shortage and a deficiency in social and affordable housing may occur and quite quickly transform the situation, for example as a result of the serious flooding of existing housing, a sudden influx of immigrants, or the opening of a large new employment opportunity such as a big factory.

There may be no brownfield alternative land available in the area or indeed at all.

The proposed development site may be no more than some sensitive infilling in the small village or town, and would be well screened, and the land may be poor quality land, not suitable for agriculture or employment or public open space, and would otherwise remain as a neglected eyesore.

Looked at objectively the proposal may be economically, socially, and environmentally fine. Employment would be provided, the design is high quality, and doctors, schools, and shops are already available or would be provided. The infrastructure, principally roads, water, gas, and electricity, would be provided or is already available. There may be many public benefits in the proposal: housing, community facilities, environmental improvements, and infrastructure of all kinds. With the benefit of hindsight the site really should originally have been included as a site for development in the local plan.

Since the local plan was adopted, some time ago, the character of the area might have changed very substantially so that the proposed new development would only be technically outside the local plan.

The law as to the scope of the residual discretion is not as clear as would be desirable (see section 38(6) of the Planning and Compulsory Purchase Act 2004, section 70(2) of the Town and Country Planning Act 1990, and paragraphs 6 to 15 of the NPPF, especially paragraph 14). There are several first instance decisions which do not all take the same view (see, for example, East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973, Wychavon District Council v Secretary of State for Communities and Local Government [2016[ EWHC 592 (Admin), and Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin)). The applicant seeking planning permission outside the local plan must expect a challenging uphill task.

Alec Samuels is a barrister and former reader at Southampton University