The UKELA-PEBA Debate. Does the #NPPF require a test of whether or not Development is Sustainable?
From the joint seminar last week I hear of a debate between John Rhodes, one of the PAG four, who said the NPPF doesn’t require a test of whether or not development is sustainable, and Ben Linscott of PINS who said it does.
Who is right? John Rhodes- but its a narrow point. The NPPF contains a presumption in favour of sustainable development, not a requirement that development be sustainable let alone a presumption against unsustainable development, as a number of us pointed out during the consultation.
The government at the Localism Bill debates in the lords resisted a clause that would define and require all schemes to be sustainable as they said it would lead to JR on many more schemes.
There is a requirement to test whether a scheme is sustainable (in the narrow terms of the NPPF) in order to test whether or not the presumption in favour of sustainable development applies. But that doesn’t mean that schemes judged not to be sustainable are refused, simply that the presumption in favour (para 14) does not apply. The NPPF does not explicitly set out the decision test in such cases but of course the presumption in favour of the development plan still applies (paras 11,12) except where ‘absent, silent or relevant policies are out‑of‑date’.
There is no requirement in the NPPF to demonstrate that schemes are sustainable, it is a special pass, those that do should be approved ‘without delay’.
So it is legitimate, for example for a scheme for a supermarket on a site allocated in an up to date adopted plan, to say in the planning statement there is no need to demonstrate that the scheme is sustainable The onus of proof is not on the applicant but objectors to show that material considerations indicate otherwise.
That would be a strange tactic as most developers would want the special pass of the presumption, but legally quite legitimate. If that scheme subsequently went to appeal and objectors demonstrated that the local plan was out of date for not fully incorporating the sustainability principles of the NPPF the developer would be in trouble as the plan would be ‘out of date’ and their would be a presumption in favour of the plan/development.
So technically John Rhodes is right, though in practice iif you dont demonstrate sustainability in terms of the NPPF then you risk undermining your own case in terms of the development plan.
A more day to day application of these principles though is domestic extensions. How could a case by case examination of the sustainability of these schemes be practical?
This demonstrates again the weakeness of the English (as opposed to Scottish) system in not taking into full account the Dobry principles of amending the decision tests and evidence requirements based on the impact and scale of the scheme, We are slowly getting there, but not yet.