The 2012 NPPF: A Digest of Decisions

Annex I: Implementation

NPPF 211

Daventry District Council [2015] EWHC 3459 (Admin), Lang J

Age alone was not a sufficient reason for giving reduced weight to saved policies, due to NPPF 211 [39].

See also [2016] EWCA Civ 1146, para. 40(i).

NPPF 212

Wakil v Hammersmith and Fulham BC [2013] EWHC 2833 (Admin), Lindblom J
Russell Harris KC and Richard Turney appeared for the Council
Rupert Warren KC appeared for the Interested Party

In stating there that the policies it contains are, from the day of its publication, “material considerations” to be taken into account both in development control decision-making and in the preparation of development plans, the NPPF is not saying that all of its policies will now be material to every application for planning permission. Nor is it saying that all of its policies must be seen as a material change of substance or emphasis in national planning policy, or a material change from the provisions of the draft NPPF. Whether there is a material change in any relevant aspect of policy, whether it is a change from the draft NPPF, and whether it is a change that might make a difference to a decision already taken on an application for planning permission, will always depend on the circumstances. [106]

NPPF 214

R (Hampton Bishop Council) [2013] EWHC 3947 (Admin), Hickinbottom J
Sasha White KC and Andrew Byass appeared for the Claimant

“But even before March 2013, the NPPF had a significant impact on development plans as they then stood.” [123]

NPPF 215

Daventry DC [2015] EWHC 3459 (Admin), Lang J

“The sole focus of NPPF 49 is the supply of deliverable housing sites, pursuant to the policy in NPPF 47. In contrast, NPPF 215 has a much broader ambit, which requires assessment of the extent to which the saved policies are consistent with all NPPF policies, including policies for the protection of the natural environment and policies favouring development in settlements, brownfield sites, sustainable locations etc. and not in the countryside.” [48]

“The other key difference between NPPF 49 and NPPF 215 is that NPPF 49 is mechanistic – if the minimum figure is not reached the policy is automatically deemed out-of-date — whereas NPPF 215 requires a far more nuanced approach. It provides that “ due weight ” should be given to relevant plans according to their degree of consistency with the NPPF. Not only does this require a careful assessment, but it also means that the Inspector must specify the weight which is due to be accorded to the policy in issue. Typically, Inspectors express weight as limited, moderate, substantial etc.” [52]

[2016] EWCA Civ 1146, Patten, Sales, David Richards LJJ

“The mere fact that housing policies are not deemed to be out of date under para. 49 does not mean that they cannot be out of date according to the general approach referred to above.” [40(v)]

Gladman Developments Ltd v SSHCLG [2019] PTSR 1302, Dove J

In commenting upon Sales LJ’s comments in Daventry DC, “it is necessary to observe, firstly, that these remarks did not form part of the decision which was reached and are therefore properly to be regarded as obiter dicta. Secondly, they relate to points raised by the developer in an effort to persuade the court that there would be no difference to the decision and therefore the court should exercise its discretion not to quash as a consequence. Thirdly, and certainly in respect of the first two points, it is important to note that Sales LJ observed that further judgments would need to be reached in the redetermination of the appeal before a definitive conclusion on the points could be reached.” [19]

Suffolk Coastal DC v Hopkins Homes Ltd and SSCLG; Richborough Esetates Partnership LLP v Cheshire East BC and SSCLG [2016] EWCA Civ 168, Jackson, Vos and Lindblom LJJ
Christopher Lockhart-Mummery KC appeared for Hopkins Homes Ltd

“Paragraph 215 is one of a series of paragraphs in Annex 1 to the NPPF dealing with the implementation of the policies it contains. These are, essentially, transitional provisions. They do not affect the substance of the policies themselves. … These provisions for the implementation of NPPF policy do not touch the interpretation of such policy, including the policies for the delivery of housing in paragraphs 47 to 55 and the policy explaining the “presumption in favour of sustainable development” in paragraph 14. The suggestion that they do is mistaken.” [40]

Gladman Developments Ltd [2017] EWHC 2448 (Admin), Jay J
Tim Buley appeared for the Secretary of State

“49 I consider that it is at least arguable that Lord Carnwath’s judgment in Hopkins Homes achieves a difference in emphasis, particularly given that he expressly disapproved Lindblom LJ’s wider approach in the Court of Appeal. Once a five-year supply has not been demonstrated, paragraph 14 of the NPPF is triggered and the “titled balance” operates. It is unnecessary to determine whether other policies are “out-of-date” or not; in any event, paragraph 14 can only be triggered once. [R] F. Coleford 11 and CSP.1 are not “policies for the supply of housing” within the meaning of paragraph 49 of the NPPF. The local plan was published in 2005 and in that sense matters have moved on, but it is not technically “out-of-date” in the sense comprehended by the NPPF. Inconsistency with the development plan falls to be addressed under paragraph 215 of the NPPF and not paragraph 14. Arguably, housing shortfall is only marginally or contingently relevant to the paragraph 215 question. Arguably, the correct approach, once paragraph 14 is triggered, is to undertake the overall planning judgment in one composite stage and not two. In that composite assessment paragraph 215 issues would fall to be addressed, including the extent to which inconsistency was established in the light of the relative age of non-housing policies within the development plan which have a contingent or indirect impact on housing policies.

50 I must emphasise, however, that I am merely sketching out arguments, not basing this Judgment on their correctness. Counsel did not address me on the foregoing matters. I must proceed on the basis of Mr Buley’s concession, and I also observe that even if the arguments I have just adumbrated represent the correct view of the law their application would make no difference to the outcome in this case. One factor enabling me to reach that conclusion is that it is reasonably clear that the Secretary of State’s overall methodology did not deviate significantly from the Inspector’s, particularly in relation to the status of the relevant policies in the development plan. Given that the Supreme Court’s decision in Hopkins Homes post-dated both decisions, this may not be particularly surprising.”

NPPF 216

Woodcock Holdings Ltd [2015] EWHC 1173 (Admin), Holgate J
Christopher Boyle KC appeared for the Claimant

“In my judgment, the policy in paragraph 216 of the NPPF should be read as a whole. It is not a policy which simply makes the trite point that decision-makers may give weight to relevant policies in emerging plans. Rather it is a policy that they may do so “according to” the three criteria or factors which follow. The policy clearly stipulates that the three criteria are relevant in each case. Of course, when dealing with a particular planning proposal it may be the case that the relevant policies in a draft plan have not attracted any objections and so it would not be necessary to consider the second criterion beyond that initial stage . But plainly the second criterion is material in each case in order to ascertain whether a relevant draft policy has attracted any objections and if so, their nature, before going on to make an assessment of the significance of any such objections.” [141]

NPPF 218

Gallagher Homes Ltd v Solihull DC [2014] EWHC 1283 (Admin), Hickinbottom J
Christopher Lockhart-Mummery KC and Zack Simons appeared for the Claimant

“Where housing data survive from an earlier regional strategy exercise, they can of course be used in the exercise of making a local plan now – paragraph 218 of the NPPF makes that clear – but where, as in this case, the plan-maker uses a policy on figure from an earlier regional strategy, even as a starting point, he can only do so with extreme caution – because of the radical policy change in respect of housing provision effected by the NPPF.” [98]


“Main town centre uses”

Stroud v North West Leicestershire District Council [2018] EWHC 2886 (Admin), HHJ Cooke

“the NPPF definition is broadly framed and does not set out to track the wording of the various classes set out in the Use Classes Order or build up the uses it refers to from a combination of those classes. The fact that hot food takeaway use is not specifically mentioned does not therefore necessarily mean that class A5 use is excluded” [13]

“In my view, hot food takeaway may either be regarded as a retail use (in that it involves the sale of goods, i.e. hot food, in detail to members of the public) or as a leisure or entertainment use (since it is plainly similar to others that are specifically described such as restaurants, drive-through restaurants, bars and pubs). This should not be surprising to anyone; takeaway food outlets are a very regular feature of most town centres and it would be odd if they were not regarded as a normal or “main” use in a town centre setting. I note in passing that one more frequent objections raised by those opposed to this application was that there were already a number of other hot takeaway outlets nearby.” [14]

“Previously developed land”

Dartford Borough Council [2017] EWCA Civ 141 Gloster and Lewison LJJ

“In my judgment the words “such as” state clearly that what follows are examples of something. Examples of what? They can only be examples of the more general expression that precedes them, namely “land in built-up areas”. As a matter of ordinary English I cannot see that any other meaning can be given to this sentence. “Land in built-up areas” cannot mean land not in built-up areas. It is argued that this interpretation means that other parts of the NPPF are in conflict with each other. Even if that were true it is not the business of an interpreter to go searching for possible ambiguities or conflicts in order to detract from the obvious meaning of the words to be interpreted.” [9]

“the definition of previously developed land, in the context of the present case, takes as its starting point that the proposed development is within the curtilage of an existing permanent structure. It follows that a new dwelling within that curtilage will not be an “isolated” home. There will already be a permanent structure on the site.” [15]

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