Following my post questioning whether following Brandon Lewis’s letter to pins was applying a ‘double hurdle’ sustainable development test as per ‘William Davis’ a correspondent draws my attention to a new recovered appeal decision the next day.
APPEAL BY PEEL INVESTMENT (NORTH) LTD AND TAYLOR WIMPEY UK LTD
LAND TO THE NORTH AND SOUTH OF WORSLEY ROAD AND LAND AT AVIARY
FIELD, BROADOAK, SALFORD, GREATER MANCHESTER, M28 2WG
APPLICATION REF: 13/63157/OUTEIA
Whilst alwsy good to see the world worst developable lose an appeal relating to protected green space the SoS decision is notable for rejecting the inspector’s view that William Davis applied.
The Secretary of State has very carefully considered the views of the parties (IR149- 155 and IR210-254), and the Inspector’s reasoning at IR359-402, as to whether the proposal is sustainable development. He has considered the Inspector’s remark at IR323 that the courts have ruled that the presumption in favour of sustainable development in paragraph 14 of the Framework should only be engaged if the development is found to be sustainable development and his remark at IR359 that, the second part of the second section of Framework paragraph 14 is only engaged if the proposal can be judged to be sustainable development. The Secretary of State observes, however, that a two-stage approach was rejected by Patterson J in Dartford BC –v- Secretary of State for Communities and Local Government  EWHC 3058 (Admin). Turning to IR359, the Secretary of State shares the Inspector’s view that, as the proposal is not in accordance with the DP, the first part of paragraph 14 of the Framework is not engaged. However, he does not agree with the Inspector’s subsequent remark that the second part of the second section of paragraph 14 of the Framework is only engaged if the proposal can be judged to be sustainable development (IR359).
In other words it all rest on the issue of ‘other material considerations’ and the SoS of course can give whatever weight to them he or she likes, turning a presumption in favour of development into a predisposition against development as and when the electoral calculus takes hold. So deciding whether to appeal is back to a high risk proposition having to predict which way the wind in blowing six months ahead. The certainty the NPPF was supposed to give is gone, as is the simplicity as it is backed by dozens of amendments and ‘side policies’ more then ever under the PPG regime, and certainly more caselaw about the decision protocol paragraphs. As such the NPPF has become as useful as a hole in the head for all sides. How can anymore any one defend a policy that the SoS is applying in a way that gives him discretion to refuse or approve anything or any planning reason? There is no longer a default ‘yes’, the default is what will please ministers gut political instincts.
As such is is unwise to appeal in those cases where there is any doubt about whether or not a landscape policy is a ‘housing supply policy’ or not and even when there is no local plan policy where there is any doubt about ‘valued landscapes’ or landscape character. In this case Peel were arrogant enough to think that a high powered council and sheer pressure would wear everybody down. Under Boles or Clarke yes, not under current political circumstances.
The other interesting interesting about the appeal is that every other para. of argument on both sides was every other paragraph relating to case law. In a simple and ffective planning system this should not have to be the case, all again due to the vague and contradictory language and test used in the NPPF. Again will anyone stand up and defend this now it requires a lever arch file of contradictory case law to (fail) to make sense of. I thought not. John Rhodes has been very quiet in recent months, well hes had teh usual award for public service failure – the Order of the Boot Extended – hasn’t he.