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Annex I: Implementation

NPPF 213

 

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 That is because the notion of a policy being out-of-date is one which exists within the structure of the Framework and which exists for particular purposes, namely the question of whether or not the tilted balance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of the Framework to suggest that the expiration of a plan period requires that its policies should be treated as out-of-date.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 Furthermore, I would entirely accept and adopt the formulation of the approach to the question of whether a policy is out-of-date given by Lindblom J in Bloor Homes.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 Lord Carnwath was not identifying a legal principle that when a plan’s end date has been passed its policies are out-of-date in the terms of the policy of the Framework.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.
  1. … the exercise required by para.213 of the Framework and the Bloor Homes test is not one which is dictated simply by the passage of time, but rather an assessment of consistency of the Framework, and the factual circumstances in which the policy is being applied including, amongst other things, what the Inspector characterised as “results on the ground”.”
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