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Achieving Sustainable Development

NPPF 11-12

 

Green Lane Chertsey (Developments) Ltd [2019] EWHC 990 (Admin), HHJ Allan Gore QC
Leon Glenister appeared for the Secretary of State

“26.  … Based on authorities that I have already drawn attention to, it is to be assumed that the inspector was aware of the tilted balance presumption and the need to have it in mind and that adherence to it could be a fundamental requirement. In order to justify what would amount to a disapplication of the tilted balance, I would have expected the inspector in his decision so to declare, and to explain his reasons for so declaring. …”

 

Wavendon Properties Ltd [2019] PTSR 2077, Dove J

“58.  It needs to be remembered, in accordance with the principles of interpretation set out above, that this is a policy designed to shape and direct the exercise of planning judgment. It is neither a rule nor a tick box instruction. The language does not warrant the conclusion that it requires every one of the most important policies to be up-of-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out-of-date applying the current Framework and the approach set out in the Bloor Homes case [2017] PTSR 1283 , an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision. This approach is also consistent with the Framework’s emphasis (consonant with the statutory framework) that the decision-taking process should be plan-led, and the question of consistency with the development plan is to be determined against the policies of the development plan taken as a whole. A similar holistic approach to the consideration of whether the most important policies in relation to the decision are out-of-date is consistent with the purpose of the policy to put up-to-date plans and plan-led decision-taking at the heart of the development control process. The application of the tilted balance in cases where only one policy of several of those most important for the decision was out-of-date, and several others were up-to-date and did not support the grant of consent, would be inconsistent with that purpose.

 

Monkhill Limited [2019] EWHC 1993 (Admin); [2020] JPL 175, Holgate J
Matthew Fraser appeared as Junior Counsel for the Claimant
Richard Moules appeared for the Secretary of State

I am grateful for counsels’ written and oral submissions, which I found to be of great assistance. It became clear during the course of the hearing that they were agreed on a number points to do with the interpretation and effect of the NPPF paras 11 and 12, forming part of the context for the arguments for and against the ground of challenge. Taking those agreed points into account, it would be helpful to summarise my understanding of the meaning and effect of this part of the NPPF, before going on to consider the legal challenge in this case:

(1)  The presumption in favour of sustainable development in para.11 does not displace s.38(6) of the 2004 Act. A planning application or appeal should be determined in accordance with the relevant policies of the development plan unless material considerations indicate otherwise.

(2)  Subject to s.38(6), where a proposal accords with an up-to-date development plan, taken as a whole, then, unless other material considerations indicate otherwise planning permission should be granted without delay (para.11(c)).

(3)  Where a proposal does not accord with an up-to-date development plan, taken as a whole, planning permission should be refused unless material considerations indicate otherwise (see also para.12).

(4)  Where there are no relevant development plan policies, planning permission should be granted unless either limb (i) or limb (ii) is satisfied.

(5)  Where there are relevant development plan policies, but the most important for determining the application are out-of-date, planning permission should be granted (subject to s.38(6)) unless either limb (i) or limb (ii) is satisfied.

(6)  Because para.11(d) states that planning permission should be granted unless the requirements of either alternative is met, it follows that if either limb (i) or limb (ii) is satisfied, the presumption in favour of sustainable development ceases to apply. The application of each limb is essentially a matter of planning judgment for the decision-maker.

(7)  Where more than one “Footnote 6” policy is engaged, limb (i) is satisfied, and the presumption in favour of sustainable development overcome, where the individual or cumulative application of those policies produces a clear reason for refusal.

(8)  The object of expressing limbs (i) and (ii) as two alternative means by which the presumption in favour of granting permission is overcome (or disapplied) is that the tilted balance in limb (ii) may not be relied upon to support the grant of permission where a proposal should be refused permission by the application of one or more “Footnote 6” policies. In this way para.11(d) prioritises the application of “Footnote 6” policies for the protection of the relevant “areas or assets of particular importance”.

(9)  It follows that where limb (i) is engaged, it should generally be applied first before going on to consider whether limb (ii) should be applied.

(10)  Under limb (i) the test is whether the application of one or more “Footnote 6 policies” provides a clear reason for refusing planning permission. The mere fact that such a policy is engaged is insufficient to satisfy limb (i). Whether or not limb (i) is met depends upon the outcome of applying the relevant “Footnote 6” policies (addressing the issue on NPPF 2012 para.14 which was left open in R. (on the application of Watermead Parish Council) v Aylesbury DC [2017] EWCA Civ 15; [2018] P.T.S.R. 43 at [45] and subsequently resolved in East Staffordshire at [22(2)].

(11)  Limb (i) is applied by taking into account only those factors which fall within the ambit of the relevant “Footnote 6” policy. Development plan policies and other policies of the NPPF are not to be taken into account in the application of limb (i) (see fn.6). (I note that this is a narrower approach than under the corresponding limb in the NPPF 2012 para.14; see, e.g. Lord Gill in Hopkins at [85]).

(12)  The application of some “Footnote 6” policies (e.g. Green Belt) requires all relevant planning considerations to be weighed in the balance. In those cases because the outcome of that assessment determines whether planning should be granted or refused, there is no justification for applying limb (ii) in addition to limb (i). The same applies where the application of a legal code for the protection of a particular area or asset determines the outcome of a planning application (see, for example, the Habitats Regulations in relation to European protected sites).

(13)  In other cases under limb (ii), the relevant “Footnote 6 policy” may not require all relevant considerations to be taken into account. For example, the NPPF para.196 requires the decision-maker to weigh only “the less than substantial harm” to a heritage asset against the “public benefits” of the proposal. Where the application of such a policy provides a clear reason for refusing planning permission, it is still necessary for the decision-maker to have regard to all other relevant considerations before determining the application or appeal (s.70(2) of the 1990 Act and s.38(6) of the 2004 Act). But that exercise must be carried out without applying the tilted balance in limb (ii), because the presumption in favour of granting permission has already been disapplied by the outcome of applying limb (i). That is the consequence of the decision-making structure laid down in the NPPF para.11(d).

(14)  There remains the situation where the application of limb (i) to a policy of the kind referred to in (13) does not provide a clear reason for refusal. The presumption in favour of sustainable 185 development will not so far have been disapplied under limb (i) and it remains necessary to strike an overall planning balance (applying also s.38(6)). Because the presumption in favour of granting planning permission still remains in play, it is relevant, indeed necessary, to apply the alternative means of overcoming that presumption, namely limb (ii). This is one situation where the applicant for permission is entitled to rely upon the “tilted balance”.

(15)  The other situation where the applicant has the benefit of the “tilted” balance is where no “Footnote 6” policies are engaged and therefore the decision-maker proceeds directly to limb (ii).

  1. Applicants for planning permission may object that under this analysis of para.11(d), the availability of the tilted balance is asymmetric. Where a proposal fails the test in limb (i), the tilted balance in limb (ii) is not applied at all. In other words, the tilted balance in limb (ii) may only be applied where the proposal either passes the test in limb (i) (and there still remain other considerations to be taken into account), or where limb (i) is not engaged at all. This analysis is wholly unobjectionable as a matter of law. It is simply the ineluctable consequence of the Secretary of State’s policy expressed through the language and structure of para.11(d).
  2. The current version of the NPPF should be capable of being understood and applied without needing to make textual comparisons with the 2012 version. But in this case reference has been made to decisions on the earlier NPPF, notably the decision of Coulson J (as he then was) in Forest of Dean DC v Secretary of State for Communities and Local Government [2016] EWHC 421 (Admin); [2016] P.T.S.R. 1031; [2016] J.P.L. 918. I note that at [36]–[37] the judge dealt with the relationship between limbs (i) and (ii) (which appeared in the NPPF 2012 but in the reverse order). He indicated that if a proposal passed the test corresponding to what is now limb (i), then the “broader review” under limb (ii) should take place. But that was in the context of a limb (i) assessment where the relevant “restrictive” policy required only some and not all relevant planning considerations to be taken into account at that stage (see [36] and the submissions of Mr Gwion Lewis for the Secretary of State at [16]). The analysis I have set out above is entirely consistent with what was said by Coulson J in Forest of Dean. The judge did not go any further. In particular, he is not to be taken as having suggested that limb (ii) should be applied in all cases, whether or not a proposal overcomes objections under limb (i).

 

Monkhill Ltd [2021] EWCA Civ 74, Sir Keith Lindblom, Senior President of Tribunals, Andrews LJ and Sir Gary Hickinbottom
Matthew Fraser appeared as Junior Counsel for the Appellant
Richard Moules appeared for the Secretary of State

“37.  The “tilted balance”, or positive presumption, under paragraph 11d)ii is not available in every case where there are “no relevant policies” of the development plan or the “most important policies” in the plan are “out-of-date”. It is deliberately disapplied in the situation provided for in paragraph 11d)i, where policies of the NPPF that “protect areas or assets of particular importance” – the footnote 6 policies – are engaged, applied and found to justify planning permission being withheld (see the first instance judgment in Forest of Dean District Council v Secretary of State for Communities and Local Government [2016] P.T.S.R. 1031 , at paragraph 28). Otherwise, the “tilted balance” could work against the protection afforded by those policies and undermine them. This would not only be hostile to the evident objective of the policy in paragraph 11d)i. It would also be inimical to the explicit strategy of the NPPF itself for “sustainable development”.

38.  Under paragraph 11d)i, it is not enough that a footnote 6 policy, restrictive of development, is engaged. The policy in question must actually be applied (see R. (on the application of Watermead Parish Council) v Aylesbury Vale District Council [2018] P.T.S.R. 43, at paragraph 45, and East Staffordshire Borough Council, at paragraph 22(2)), and its application must provide a “clear reason for [refusal]”. Only then will the “tilted balance” under paragraph 11d)ii be disapplied by the operation of paragraph 11d)i. If the policy in paragraph 11d)i is to be operated effectively, it is therefore essential that policies referred to in footnote 6 are not artificially excluded in the absence of clear words with that effect.”

 

Paul Newman New Homes [2021] EWCA Civ 15, Peter Jackson, Coulson and Andrews LJJ
Christopher Lockhart-Mummery QC and Yaaser Vanderman appeared for the Appellant
Guy Williams appeared for the Secretary of State

“35.  Like the Judge, I do not find it particularly helpful to consider the language of the 2012 NPPF or how that was construed in earlier cases, and I do not consider that the consultation documentation adds anything useful to the debate. The 2012 NPPF was replaced by the 2018 version, which uses different language and, unlike its predecessor, deals in one place with all the considerations that determine whether the tilted balance should apply.

  1. The words “absent” and “silent” have gone. Cases on their meaning do not assist in the interpretation of the language that was used in their place, which is deliberately and materially different. Moreover, none of the cases to which we were taken by Mr Lockhart-Mummery, including Bloor Homes , directly considered the situation where the local development plan contained one or more policies that were relevant, in the sense of being pertinent to the determination of the application under consideration, but were or might be insufficient in and of themselves to determine the acceptability of the application in principle.
  2. The first “trigger” for the application of the tilted balance under paragraph 11d) is “where there are no relevant development plan policies”. That describes the situation where there is no policy in the development plan that is relevant to the decision whether the application should be granted or refused. Obviously, that is wide enough to embrace, by way of example, the scenario where there is no development plan at all; or where there is such a plan, but it pre-dates the 2004 Act, and none of the policies in it that might have been relevant has been saved.
  3. As Mr Williams, on behalf of the Secretary of State, reminded the Court, paragraph 11d) is concerned with the entire range of applications for which planning consent is required and not just with housing developments. Thus, what is relevant in the context of one type of planning application may well be irrelevant in another. Moreover, the number of policies that are relevant will vary from case to case and it may be that only one or two are truly pertinent to the determination of the application under consideration.
  4. I respectfully agree with the Judge that the concept of “relevance” means that the policy or policies must have a real role to play in the determination of the application, but there is no requirement that it or they should be enough in themselves to enable the decision maker to grant or refuse that application. “Relevant” does not mean, and cannot mean, “determinative”. The first trigger cannot be activated if there is a relevant policy in the local plan, as there was here. Mr Lockhart-Mummery’s suggested interpretation would involve doing violence to the language of paragraph 11d) by reading it as if it said: “where the local plan does not contain a body of policies sufficient for determining the application in principle.”
  5. I also agree with the Judge that in a case that involves a housing application, there is no reason to restrict the concept of “relevance” to policies that are specifically targeted at the type of development under consideration (such as affordable housing, or a block of flats) or the location of the proposed development (such as policies about building in the countryside). A general development control policy may be capable of having a real role to play in the outcome of an application; its importance is a different matter, which will depend on the facts and circumstances of the particular case, and is a matter of value judgment on which the expertise of a planning inspector will carry significant weight.
  6. It was in the specific context of drawing the distinction between relevance and importance that the Judge referred (in paragraph 32) to the concept of relevance not excluding “mundane policies applicable to the sort of development proposal … such as the provision of adequate access to the highway or adequate sewerage”. There is a danger that these illustrations might be misunderstood. I do not believe that the Judge was intending to suggest that policies of that mundane nature would be relevant in every case, let alone that the existence of a single policy of that nature in the local plan would necessarily preclude the operation of the first trigger. Indeed, earlier in the same passage he accepts that a policy of wholly tangential significance may be “irrelevant”.
  7. In any event, policy GP. 35 is of a completely different character and, for reasons that I have already explained, the Inspector was entitled to find it relevant. Since the Inspector and the Judge correctly concluded that policy GP. 35 was not confined in its ambit to matters of detail arising only at the reserved matters stage, the question whether that policy was relevant and how important it was to the determination of the application under consideration were quintessential matters of planning judgment.
  8. The second “trigger” for the application of the tilted balance is “where the policies which are most important for determining the application are out-of-date.” That necessarily involves an evaluation by the decision maker of which of the relevant policies in the local plan are the most important, and whether they accord with current national policy. As the Judge and the Inspector both found, a policy is not out-of-date simply because it is in a time-expired plan: Mr Lockhart-Mummery rightly did not seek to contend otherwise.
  9. In Wavendon Properties Ltd v Secretary of State for Housing Communities and Local Government and another [2019] EWHC 1524 (Admin), [2019] PTSR 2077 , Dove J. had to consider the argument that this phrase meant that if one of the policies that was among the most important for determining the application was out-of-date, the tilted balance automatically applied. He rightly rejected that argument, pointing out that the first step in the exercise is to identify the policies that are the most important for determining the application; the second is to examine each of those policies to see if it is out-of-date; and the third is to stand back and assess whether, taken overall, those policies could be concluded to be out-of-date for the purposes of the decision. He regarded this holistic approach as consistent with the purpose of the policy to put up-to-date plans and plan-led decision taking at the heart of the development control process. As he said at [58]:

“The application of the tilted balance in cases where only one policy of several of those most important for the decision was out of date and several others were up-to-date and did not support the grant of consent, would be inconsistent with that purpose.”

  1. That approach is entirely sound, but it is important to note that Dove J. was specifically concerned with a case in which there was a group (or as it has become known colloquially a “basket”) of relevant policies to consider. His remarks, taken out of that context, cannot be used to support an interpretation of paragraph 11d) which applies the tilted balance despite the fact that there is a relevant policy in the local plan which is up-to-date, and that policy is regarded by the decision-maker as the most important for determining the application, just because that policy happens to be the only relevant policy. Indeed, his reasoning about the intention of putting plan-led decision taking at the heart of the development control process points towards the opposite conclusion.
  2. The Judge was right to find that the second trigger contains no requirement that the up-to-date basket of the most important policies in the development plan for determining the application should itself also constitute a body of policies sufficient for the determination of the acceptability of the application in principle. Dove J. said no such thing; that was not the issue he had to determine in Wavendon, and his reasoning does not support that construction of paragraph 11d). Nor does the natural reading of the language, taken in context.
  3. As the Judge pointed out in paragraph 36 of his judgment in the present case, the plural “policies” embraces the singular, avoids linguistic awkwardness, and makes sense. The alternative construction would mean that the tilted balance would apply (in the absence of the exceptions) despite the presence of an up-to-date, self-contained, site and development policy that was the crucial policy, merely because that policy was the sole survivor in the local plan. I find those points compelling. There is nothing in the Judge’s approach that is inconsistent with Wavendon; on the contrary, his approach makes sense and accords with a common-sense interpretation of the language used, taken in context.
  4. As Mr Williams submitted, at the end of the day there is nothing inherently unfair to an applicant or contrary to the overall scheme of the NPPF or the 2004 Act, both of which afford primacy to the local plan, about the balancing exercise being carried out under section 38(6) in circumstances where an experienced Planning Inspector has found that there is a policy in the development plan that is relevant, important and up-to-date.”

 

Gladman Developments Ltd [2021] EWCA Civ 104, Sir Keith Lindblom, Senior President of Tribunals, Simler LJ and Sir Gary Hickinbottom

“47.  Leaving the previous cases to one side, I would in any event interpret paragraph 11d)ii, in accordance with the principles I have mentioned, as not excluding the taking into account and weighing of development plan policies in the “tilted balance”. I agree with Holgate J.’s analysis and conclusions to the same effect.
48.  In paragraph 11 two main currents running through the NPPF converge: the Government’s commitment to the “plan-led” system and its support for “sustainable development”. The former makes its appearance in paragraph 2, which acknowledges the primacy of the development plan in the making of planning decisions. The latter emerges in chapter 2, where paragraph 11 contains the “presumption in favour of sustainable development”, but paragraph 12 states the obvious but important point that the presumption “does not change the statutory status of the development plan as the starting point for decision making”. As I have said, the policy in paragraph 11 does not displace or modify the decision-maker’s statutory responsibilities. Nor could it – because it is policy, not statute. It functions within the statutory arrangements for planning decision-making, not outside them.
49.  The provisions on “decision-taking” in the second part of paragraph 11 set out a policy to guide decision-makers on the performance of their statutory responsibilities under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, in the specific circumstances to which they relate. Those circumstances are, first, where “development proposals … accord with an up-to-date development plan” (paragraph 11c)), and secondly, “where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date” (paragraph 11d)). The two limbs of paragraph 11d), connected by the word “or”, are disjunctive. They describe two different situations in which the “presumption in favour of sustainable development” will be disapplied. The first limb, in paragraph 11d)i, is limited to the application of a small number of particular policies, namely “policies in this Framework that protect areas or assets of particular importance”, and those policies are individually identified in footnote 6. The second limb, in paragraph 11d)ii goes much wider. It replicates the equivalent provision in the original version of the NPPF. It provides for an assessment against “the policies in this Framework taken as a whole”, which are not the subject of a footnote.
50.  The technique with which footnotes are used in paragraph 11 is, I think, significant. The footnotes are applied directly to the provisions to which they relate. Footnote 6, which deliberately excludes policies “in development plans”, has been applied to paragraph 11d)i, but not to paragraph 11d)ii. It has also been applied to paragraph 11b)i, but not to paragraph 11b)ii – which is in exactly the same terms as paragraph 11d)ii. A reasonable inference here is that, in the light of the case law, the Government saw the need to introduce this qualification to paragraph 11d)i, but no need to do so for paragraph 11d)ii. Had it wanted to exclude development plan policy from the ambit of paragraph 11d)ii, it could easily have done that. But it did not.”

 

Oxton Farm v Harrogate Borough Council [2020] EWCA Civ 805, Underhill LJ VPCA, Lewison LJ, Carr LJ

“32. It is common ground that whether the tilted balance is engaged because of a shortfall in the supply of deliverable sites for housing is a binary question, to be answered yes or no. Either there is a 5 year supply of housing land, or there is not. If there is a 5 year supply then the tilted balance is not engaged on that basis. It does not matter, for this purpose, whether the supply exceeds 5 years by a little or a lot.

33. But the lack of a 5 year supply of housing land is not exhaustive of policies that may be out of date. Other policies which bear on the decision may also be out of date, with the consequence that the tilted balance is triggered on a different basis: Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37, [2017] 1 WLR 1865 at [58]. A policy may be out of date because of a change in national policy or because of things that have happened on the ground, or for some other reason: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), [2017] PTSR 1283 at [45]. Whether a policy is out of date is a matter of planning judgment: Hopkins Homes at [55].

 

Peel Investments (North) Limited [2020] EWCA Civ 1175, Lewison and Baker LJJ, Sir Stephen Richards
Rupert Warren QC appeared as Leading Counsel for the Appellant
Matthew Fraser appeared as Junior Counsel for the Second Respondent

“65.  There is nothing in paragraph 11d of the 2018 NPPF, or its predecessor paragraph 14 of the 2012 Framework, to suggest that the expiry of the period of the plan automatically renders the policies in the plan out-of-date. I agree with Sir Duncan Ouseley’s observations in Paul Newman New Homes that a policy is not out-of-date simply because it is in a time-expired plan and that, if the Framework had intended to treat as out-of-date all saved but time-expired policies, it would not have used the phrase “out-of-date” but rather the language of time-expired policies or policies in a time-expired plan. As a matter of construction of the terms of the NPPF, the appellant’s argument on ground one is unsustainable.

  1. I endorse and adopt the careful and precise analysis of paragraph 14 of the 2012 NPPF carried out by Lindblom J in Bloor Homes . His analysis plainly applies to the revised terms of the presumption in favour of sustainable development in paragraph 11d of the 2018 Framework. If the policies which are most important for determining the planning application have been overtaken by things that have happened since the plan was adopted, either on the ground or through a change in national policy, or for some other reason, so that they are now out-of-date, the decision-makers must apply the tilted balance expressed in the presumption in favour of sustainable development.
  2. The appellant’s case on the first ground of appeal rests almost exclusively on a single sentence in paragraph 63 of Lord Carnwath’s judgment in the Hopkins Homes case cited at paragraph 26 above. I agree with Dove J that it was an obiter remark which does not lay down any legal principle and which is quite incapable of bearing the forensic weight which the appellant seeks to ascribe to it. I do not accept the appellant’s submission that the contention that the policies in a plan which is past its expiry date are in every case out-of-date is a correct reflection either of the NPPF as a whole or of regulation 5(1)(a)(i).
  3. With regard to the second ground of appeal, I do not accept the appellant’s submission that a plan without strategic housing policies is automatically out-of-date for the purposes of paragraph 11d so as to engage the tilted balance.”
    “It seems to me that the key to interpreting paragraph 11d lies not in paragraph 63 of Lord Carnwath’s judgment in Hopkins Homes but, rather, in paragraph 55, where he observed that, whether a policy becomes out-of-date and, if so, with what consequences are matters of pure planning judgment, not dependent on issues of legal interpretation.” [71]

 

R (Ewans) v Mid Suffolk DC [2021] EWHC 511 (Admin), Holgate J

“47.  I accept that a planning authority may consider it appropriate to carry out a comparison with NPPF policies in a generic manner which would apply to, or be capable of applying to, any proposal coming before it within the scope of the relevant local plan policies. But as a matter of law, it is not restricted to acting in that way. The language used in para.11(d) of the NPPF is “the policies which are most important for determining the application are out of date”. That plainly encompasses inter alia the manner in which a policy operates in relation to the determination of a particular application, although that may be judged to affect the determination of other applications as well. Accordingly, the operation of development plan policies in relation to a particular proposal may properly be compared with the way in which the operation of NPPF policies affects the determination of that proposal.”

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