Sustainable development and the NPPF

Sustainable development is a concept akin to a ‘just society’ or ‘affordable housing’ – everyone can agree that it is desirable but not what it means or how it can be achieved. It is a key concept in environmental and planning law. When the coalition government published the National Planning Policy Framework (NPPF) in March 2012, it stated in the ministerial foreword: ‘The purpose of planning is to help achieve sustainable development.’

As is well known, paragraph 14 of the NPPF states that there shall be a ‘presumption in favour of sustainable development’ running as a ‘golden thread’ through plan-making and decision-?taking. Having set the pursuit of sustainable development at the heart of the planning system, the NPPF relies on the ‘Brundtland definition’ that sustainable development ‘meets the needs of ?the present without compromising the ability of future generations to meet their own needs’ and sets out five ‘guiding principles’ of sustainable development. 

Paragraph 7 of the NPPF refers to three dimensions of sustainable development: economic, social, and environmental. ?What it does not do is explain explicitly ?how a development should be judged to be ?‘sustainable’ within the precise and complex context of the planning system. 

Definition of ‘sustainable development’

In Cheshire East Borough Council v Secretary of State for Communities and Local Government and Renew Land Developments [2016] EWHC 571 (Admin), Mr Justice Jay grappled with this question arising from the structure of the NPPF head on. 

The case concerned housing development ?and the operation of paragraph 14 of the NPPF. The claimant in the case argued that the decision maker must first determine whether a development is ‘sustainable’ before applying the criteria in paragraph 14 to operate the presumption in its favour of granting permission. The key provision in paragraph 14 reads: ‘For decision-taking ?[the presumption] means:

• Approving development proposals that accord with the development plan without delay; and

• Where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the polices in this framework taken as a whole; or

- specific policies in this framework indicate development should be restricted.’

In Cheshire East, Jay J sought to address the question as to what ‘sustainable development’ means in the context of paragraph 14. In previous cases which were relied upon by the claimant, there had been a suggestion that for the presumption in favour of a development to operate, it must be first deemed ‘sustainable’, most notably as suggested briefly in the dicta of Mrs Justice Lang in William Davis Ltd v Secretary ?of State for Communities and Local Government [2013] EWHC 3058 (Admin).

This was solidly rejected by the judge, who stated at paragraphs 19 to 20: ‘Although there may be cases where sustainable development “jointly and simultaneously” achieves economic, social, and environmental gains (as per the optimistic language of paragraph 8 of the NPPF), ?I have already said that it must be obvious that ?in most situations there will be somewhat of a trade-off between competing desiderata. It follows that a balance must be struck, but on what basis? In my judgement, the answer is to be found in the language of paragraph 14 of the NPPF. Where the second bullet point applies, because the development plan is absent, silent or relevant policies are out-of-date, the proposal under scrutiny will be sustainable development, and therefore should be approved, unless any adverse impacts significantly and demonstrably outweigh the benefits.

In the absence of paragraph 14, decision makers would be unable to decide how tensions >>  >> between the competing desiderata should ?be reconciled. If, for example, the economic ?and social merits only slightly outweighed the environmental, what then? The answer is not to be found in paragraphs 6 to 8. The framers of the NPPF rightly thought that guidance in this regard was necessary. The guidance they have provided in the form of paragraph 14 is to say that the proposal should be approved as sustainable development unless the adverse impacts clearly and significantly outweighed the benefits.’

In other words, the definition of ‘sustainable development’ is not to be found elsewhere in the NPPF (most notably paragraphs 6 to 8) or in a set of external assessment criteria – it has been right in front of our noses all along in paragraph 14.

Local policy context

It is worth noting here that the Communities and Local Government Select Committee commented on this very issue when it published a further report on the operation of the NPPF in 2014: ‘There is, however, one area of ambiguity that ?we consider should be addressed. After defining sustainable development, the NPPF then states that the policies in paragraphs 18 to 219 “taken ?as a whole, constitute the government’s view ?of what sustainable development in England means in practice for the planning system”. ?Neil Blackshaw, principal at Easton Planning, described this as “a curiously circular argument” and said that it might not be “entirely helpful given the crucial importance of the concept in ?the NPPF”. 

We agree: the definition should stand on its own as a beacon informing the rest of the NPPF, not the other way round. It is vital that those making planning decisions are absolutely clear about what constitutes sustainable development: telling them to look at the framework as a whole to understand what the government means ?by sustainable development can only be a distraction from the carefully-written definition set out at the start. We recommend that the government remove from the NPPF the statement that the policies in paragraphs 18 to 219, taken ?as a whole, constitute the government’s view of what sustainable development means in practice. The definition [in paragraphs 6 to 8] of the NPPF needs to stand on its own. [emphasis in the original]’

The judge’s role is, of course, different from that of the select committee – it is to interpret and apply guidance to a set of facts rather than recommend amendments in principle. 

On the judge’s analysis, one can see how the ‘algorithm’ is constructed and perhaps intended by the drafters of the NPPF, but it does not mesh entirely with commonly understood meanings ?of ‘sustainable development’. The wording of paragraph 14 can be read as implying there is a prior judgement as to whether a development ?is ‘sustainable’, with the following criteria to determine how decision making should proceed from there.

It is reasonably straightforward to say that ?if it cannot be shown that the adverse impact ?of a development clearly outweighs the benefits, ?then the development must be sustainable (provided the criteria used to assess both is sufficiently broad to encompass the three underlying dimensions of sustainability). 

But it is not so straightforward to say that because a development plan or its policies are ?‘out of date’ (e.g. in housing applications, they are not supported by an objectively demonstrated five-year housing supply), then, provided the adverse impacts do not outweigh the benefits, the development proposed must therefore be sustainable. The state of the local policy context ?in terms of where it is in the plan-making process does not have a determining influence on the sustainability of an individual proposal in ?the traditional sense as to whether it has ?no net negative environmental, social, and economic effects.

On this reading, local plan policies may become irrelevant to the question of what is sustainable. Surely that question is one that directly relates to a local context – in the 2011 report of the Communities and Local Government Committee that considered the draft NPPF, one of the points raised was that any particular development (such as a ‘B&Q on a contaminated brownfield site’) may be viewed as ‘sustainable’ in an area desperate for jobs and commercial investment but not in an area far more concerned with impact on neighbouring amenity and the viability of the high street.

The gist of the judge’s emphasis on paragraph 14 is that the presumption must be that any development proposal will be ‘sustainable’, unless its adverse impact clearly outweighs its benefits or there is a very strong policy imperative not to permit it. This is a very different starting point from the general and traditional view of environmental protection law, which is that the bulk of development is ‘unsustainable’, given its impact on biodiversity, air pollution, global warming, and so on. 

It also lays a great deal of responsibility on the decision maker to ensure that development genuinely is ‘sustainable’ via the use of a spectrum of policy tools, many of which are ‘pulling in different directions’. There will be many, particularly in the environmental field, who will question whether this interpretation of the NPPF is sufficient to ensure the laudable aims set out in its opening paragraphs are achieved.

Adrienne Copithorne is a partner at Richard Buxton Environmental and Public Law @RBEnviroLaw www.richardbuxton.co.uk