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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determining the application, and having examined each of them in relation to the question of whether or not they are out-of-date applying the current Framework and the approach set out in the Bloor Homes case [2017] PTSR 1283 , an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision.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A similar holistic approach to the consideration of whether the most important policies in relation to the decision are out-of-date is consistent with the purpose of the policy to put up-to-date plans and plan-led decision-taking at the heart of the development control process.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of the tilted balance in cases where only one policy of several of those most important for the decision was out-of-date, and several others were up-to-date and did not support the grant of consent, would be inconsistent with that purpose.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
Charles Banner QC and Matthew Fraser appeared 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).

 

Peel Investments (North) Limited [2020] JPL 279, Dove J
Christopher Katkowski QC and Matthew Fraser appeared for the Second Defendant

“58. In my view the starting point of the evaluation of these submissions must be an understanding that at the heart of this issue is a question of interpretation of planning policy, and in particular the planning policy contained in paras 11d and 213 of the 2018 Framework. That is because the notion of a policy being out-of-date is one which exists within the structure of the Framework and which exists for particular purposes, namely the question of whether or not the tilted balance should apply and the weight which should be attached to the policy in the decision-taking process. In my judgment it is critical to note that there is nothing in the relevant provisions of the Framework to suggest that the expiration of a plan period requires that its policies should be treated as out-of-date. Indeed, to the contrary, the provisions of para.213 specifically contemplate that older policies which are consistent with the Framework should be afforded continuing weight. Furthermore, I would entirely accept and adopt the formulation of the approach to the question of whether a policy is out-of-date given by Lindblom J in Bloor Homes. It will be a question of fact or in some cases fact and judgment. The expiration of the end date of the plan may be relevant to that exercise but it is not dispositive of it, nor did Lindblom J suggest that was the case. In so far as reliance is placed by the Claimant on the observation of Lord Carnwath at [63] of Hopkins Homes, I accept the submissions made by the First and Second Defendants that it is an obiter remark which does not lay down any legal principle, or provide a gloss on Lindblom J’s approach. It is important to note that Lord Carnwath had endorsed Lindblom J’s views at an earlier part of the judgment and it would be inconsistent with that endorsement to read the sentence in [63] as a further gloss on Lindblom J’s conclusions. In short, this sentence from the judgment is quite incapable of bearing the forensic weight which the Claimant seeks to ascribe to it. Lord Carnwath was not identifying a legal principle that when a plan’s end date has been passed its policies are out-of-date in the terms of the policy of the Framework.

  1. I am unable to accept the submission that the provisions of the 2012 Regulations also demand that once a plan period has expired the plan must be deemed out-of-date when applying the policy of the Framework. First, the provisions of the 2012 Regulations are addressing the matters which need to be included when a local development document is being prepared and adopted or which defines a document as such. The Regulations are not designed, nor do they purport, to govern the application of the Framework’s term out-of-date for the purposes of para.11 of the Framework. Indeed, as I have already emphasised, that is a policy concept to be interpreted and applied within the context of the Framework and is not, therefore, to be defined by elements of the statutory framework which are not referred to by the Framework in this connection at all. Indeed, the statutory framework is consistent with the provisions of para.213 of the Framework in that this statutory material does not, for instance, suggest that once the plan period for an element of the development plan has expired that plan ceases to be part of the development plan for the purposes of exercising the statutory discretion as to whether or not to grant planning permission, or should be treated differently in the decision-taking process.”

 

Paul Newman New Homes [2020] 1 P&CR 11 (Admin), Sir Duncan Ouseley
Christopher Lockhart-Mummery QC appeared for the Claimant
Guy Williams appeared for the Secretary of State

“32.  I start by construing paragraph 11d in its context in the Framework, as a document on its own. The phrase “where there are no relevant development plan policies” is quite clear. Where one or more relevant development plan policies exist, that trigger for the application of the “tilted balance” cannot be applied. One relevant development plan policy is sufficient to prevent it. Although that policy may exist in a time-expired plan as a saved policy, it is a development plan policy. This trigger contains no requirement that the policy be up to date rather than out of date. “Relevant” can only mean relevant to determining the application. There is, however, no adjective qualifying the degree of relevance it should have for that purpose, for example that it should be decisive or of high importance. “Relevance” connotes no more than some real role in the determination of the application. A fanciful connection would not suffice, and a policy of wholly tangential significance may be “irrelevant”. There is also no requirement in this first trigger that the one or more relevant development plan policies should comprise one or more development plan policies important for determining the application, let alone that they should constitute a body of policy or policies sufficient for determining the acceptability of the application in principle. I agree with Mr Williams that “relevant” does not exclude general development control policies, and so does not exclude the mundane policies applicable to the sort of development proposed, even if they are not remotely controversial in their application, such as the provision of adequate access to the highway or adequate sewerage. On that basis, the Inspector’s interpretation of the first trigger is correct.

  1. In my judgment, the key part of the second trigger, the phrase “where the policies which are most important for determining the application are out-of-date”, is reasonably clear. A policy is not out of date simply because it is in a time-expired plan; that is the point which the Inspector appears to have been addressing in DL27, though it appears not to have been an issue before her. I agree with what Dove J said in Wavendon Properties in this respect. It is the correct interpretation. If the 2018 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”, which has different or wider connotations, and would have used instead the language of time-expired policies or policies in a time-expired plan. The Inspector’s comment in DL27 is apposite in that context. Although the earlier jurisprudence in Bloor Homes and Hopkins Homes related to that same phrase in the 2012 Framework, I see no reason to discount it here where its role is not materially different.
  2. I also agree with the analysis of the phraseology of the second trigger as a whole in Wavendon Properties. The first task is to identify the basket of policies from the development plan which constitute those most important for determining the application. The second task is to decide whether that basket, viewed overall, is out of date; the fact that one or more of the policies in the basket might themselves be out of date would be relevant to but not necessarily determinative of whether the basket of most important policies was itself overall out of date. This 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.
  3. I do not consider that the plural “policies” means that a single up to date policy, even if plainly by itself the most important for determining the application, cannot suffice to block the second trigger; the plural encompasses the singular, as is a commonplace construction. Otherwise even an up to date, self-contained, site and development specific policy, the crucial policy, the sole survivor, could lead to the application of the “tilted balance” and to the grant of permission unless the provisos in (i) and (ii) applied. The alternative construction focuses unduly on what is mere linguistic awkwardness, accepted for convenience. The plural “policies” avoids the somewhat legalistic “policy or policies”, with “is or are” to follow, at the price of the slightly awkward language seen in DL 26, last sentence. On the basis of her interpretation of GP.35, and on that interpretation of the second trigger, the Inspector’s conclusion that the “tilted balance” did not apply is correct.
  4. I do not accept Mr Lockhart-Mummery’s submission that I should interpret para.11d of the 2018 Framework as if it were the different language of para.14 of the 2012 Framework. The difference in language must be intentional; the changed language may respond to the Courts’ exposition of para.14 but the response does not obviously adopt the language of that exposition. It would be wrong to suppose, just because no changes were expressly heralded as significant, that no changes at all were intended, or that the changes were to be so minor that they might as well be ignored in favour of the exposition of the earlier but different language. The first trigger in each version would cover many of the same situations, but the 2018 version focuses on policies and not on the existence of a plan. The first trigger in the 2012 version would be blocked by the existence of a plan, whether or not it had any relevant policies, not so the 2018 version. The second trigger in each version (taking silence and relevant policies being out of date as a single trigger) would cover many of the same situations, but again the focus is differently expressed, and as I have said, the exposition in the decided cases was not in terms adopted. The Government decided to deal with the issues in its own preferred language. I do not consider that para.11d should be rewritten in the manner which would be necessary, were effect to be given to Mr Lockhart- Mummery’s submissions.
  5. In my judgment, it is right to consider the 2018 Framework on its own. I accept that such a document should be construed in general without reference to previous policies or versions for the reasons given by Lewison LJ in Dartford Borough Council, in which he echoes what has been the general approach of the Court of Appeal in earlier cases, and is reflected in Barker Mill Trustees. My analysis of the changes does not persuade me that I should determine the meaning of the 2018 Framework by reference to the 2012 Framework jurisprudence. Nor do I consider that the consultation documents and process were confounded by the changes actually made, and so they do not support a different interpretation from the one I have reached reading the 2018 Framework on its own.
  6. The Secretary of State’s interpretation may create an odd result in certain circumstances: the policies to be examined are those in the development plan; the most important ones can only be drawn from them. So, their selection will be skewed by what has survived. The “most important” may be comparatively unimportant when tested against the plan as once it was, or when tested against those policies which would conventionally be regarded as the most important for the determination of the acceptability of the application in principle. However, that oddity, intended or not, is not one which can be resolved by the interpretation sought by Mr Lockhart-Mummery without doing unwarranted violence to the language, and creating policy which it is for the Secretary of State to do. An interpretation which imported the effect of the Courts’ exposition of “silent”, so as to require the “most important” policies to be those which would provide the basis for determining the acceptability of the proposal in principle, suffers from the drawback that there was a clear response to that judicial exposition of the 2012 Framework in the 2018 Framework, and that response did not adopt the language of that exposition. It chose different phraseology. It would not be for judicial endeavour to create unintended policy. Government could amend the Framework if it concluded that there were unintended problems, which merited its amendment.
  7. There seems to be another oddity in the relation between the two triggers. The first trigger can be blocked by the existence of a single relevant out of date development plan policy. The second trigger would still however be pulled if the most important relevant development plan policies overall were out of date. It is difficult to see circumstances in which trigger one would be pulled in which trigger two would also not be pulled, and if trigger two is pulled it does not matter whether trigger one is pulled or not. I find it difficult then to see what the purpose of trigger one is. It is hard to see that trigger one serves to counter the possibility of a barrack-room lawyer argument that trigger two cannot be pulled, simply because there are no relevant development plan policies at all. This sort of problem is not unknown in statutory interpretation, however, as the draftsman moves from the apparently greater problem to the lesser. I am not persuaded that this oddity warrants giving paragraph 11d the interpretation contended for by Mr Lockhart-Mummery.”

 

Gladman Developments Ltd [2020] EWHC 518 (Admin), Holgate J

“1.        These challenges by Gladman Developments Limited to two appeal decisions made by Planning Inspectors relate to the interpretation of paragraph 11(d)(ii) of the National Planning Policy Framework issued in February 2019 (“NPPF”). Does that policy require as the Claimant submits, the “tilted balance” to be struck without taking into account policies of the development plan, leaving those matters to be weighed separately under s.38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”)? The Secretary of State for Housing, Communities and Local Government, the First Defendant in both challenges, supported by Uttlesford District Council (“UDC”), the Second Defendant in CO/4265/2019, contend that the answer to this question is ‘no’; relevant development plan policies, whether favourable, unfavourable or neutral towards the development proposed may be taken into account in the tilted balance under paragraph 11(d)(ii).

  1. Leading counsel submitted that the words in parentheses, which apply both to paragraph 11(b)(i) and paragraph 11(d)(i), were inserted in order to reverse the observations of Lords Carnwath and Gill on the 2012 NPPF [in Hopkins Homes [2017] 1 WLR 1865] as regards both plan-making and decision-taking. Mr Honey on behalf of the Secretary of State agreed with that submission to that extent.

  1. When a decision-maker judges that development plan policies are out-of-date it is still necessary for him to consider the weight to be given to that conclusion and the relevant development plan policies bearing upon the proposal. Likewise, where policy 11(d)(ii) is triggered because a 5 year supply of housing land cannot be demonstrated, the decision- maker will still need to assess the weight to be given to development plan policies, including whether or not they are in substance out-of-date and if so for what reasons. In these circumstances the NPPF does not prescribe the weight which should be given to development plan policies. The decision-maker may also take into account, for example, the nature and extent of any housing shortfall, the reasons therefor, and the prospects of that shortfall being reduced…

  1. …although paragraph 14 [of the first NPPF] required the tilted balance to be “assessed against the policies in this Framework as a whole” without referring explicitly to development plan policies, the courts have made it plain that the weight to be attached to development policies, whether telling in favour of or against a proposal, was a matter to be assessed in that balance. That was wholly unsurprising given that paragraph 14 had to be understood in the context of the development plan led system, established by the presumption contained in s.38(6).
  2. The Claimant did not attempt to distinguish this line of authority or to argue that it was irrelevant to the interpretation of paragraph 11(d)(ii) of NPPF 2019.

  1. I also accept Mr Honey’s submission that the language of footnote 6 to the NPPF 2019 does differ materially from footnote 9 to NPPF 2012, in that development plan policies are not to be taken into account under paragraph 11(d)(i). But that alteration has been confined to paragraphs 11(b)(i) and 11(d)(i). It does not apply to paragraph 11(d)(ii).
  2. Adopting the straightforward approach to interpretation laid down by the case law, paragraph 11(d)(ii) of the NPPF 2019 does not require any relevant development plan policies to be excluded from the tilted balance. The position remains the same as under paragraph 14 of NPPF 2012.

  1. It is important to note that paragraph 11(d)(ii) may operate in three different scenarios: –
    1. There are no relevant development plan policies:
    2. The policies which are most important for determining the application are assessed by the decision-maker as being out-of-date:
    3. A shortfall in the requirement for a 5 year supply of housing land triggers the application of paragraph 11(d)(ii) by deeming those policies important for the determination of the application to be out-of-date.
  1. In scenario (1) there will be no need to consider whether the proposal accords with the development plan; there will only be “other material considerations” to take into account. The same applies when paragraph 11(d)(ii) is applied to this scenario. Accordingly, the phrase “against other policies in this Framework taken as a whole” simply recognises that paragraph 11(d)(ii) may apply where there are no relevant development plan policies. The language has been chosen so as to be applicable to all three scenarios. It has not been drafted so as to have the effect of excluding development plan policies from the tilted balance in scenarios (2) and (3).
  2. Turning to scenarios (2) and (3), the absence of any explicit reference to development plan policies in limb (ii) is of no significance. The tilted balance applies in the context of the statutory framework, particularly s.38(6), by virtue of which development plan policies must be taken into account in any event.

  1. I accept the Secretary of State’s submissions that there is no legal justification for the court to prescribe that the tilted balance in paragraph 11(d)(ii) of the NPPF and the presumption in s.38(6) must be applied in two separate stages in sequence. There is nothing in the wording or effect of either provision which would justify the court acting in that way.
  2. It is permissible for the decision-maker to assemble all the relevant material and to apply the two balances together or separately.”
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