In Peel Investments (North) Ltd v Secretary of State for Housing CLG [2020] EWCA Civ 1175; [2020] PLSCS 167, the Court of Appeal concluded that a development plan is not automatically out-of-date for the purposes of paragraph 11(d) of the NPPF where the specified period of a development plan document has expired.
The Court of Appeal dismissed two consolidated appeals against Salford City Council’s refusal of outline planning permission for up to 165 and 600 homes at the Worsley Greenway. The Salford Unitary Development Plan period expired in 2016; however, two policies that protect the Worsley Greenway were saved.
The appellant argued that these policies were out-of-date, and therefore the balance tilted in favour of the grant of permission. However, the council relied on Lindblom J’s analysis of the meaning of “out-of-date” in the former NPPF 2012 in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin).
Paragraph 11(d) of the NPPF states that the presumption in favour of sustainable development means:
“where there are no development planning policies, or the policies which are most important for determining the application are out-of-date, granting planning permission unless:
- The application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or
- Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.”
The Court of Appeal held that nothing in paragraph 11(d) suggests that the expiry of the specified period of a development plan document automatically renders the policies “out-of-date”. In accordance with Lindblom J’s analysis, policies are “out-of-date” for the purposes of paragraph 11(d) if they have been overtaken by things that have happened since the plan was adopted, either through national policy changes or for some other reason.
The Court of Appeal also confirmed that a development plan is not automatically “out-of-date” where it does not contain strategic housing policies, as it is a question of planning judgment for the decision-maker.
The decision confirms that a local development plan can include certain policies that are intended to operate on a longer timescale than the plan period. That does not render the policies as “out-of-date” simply because it is in a time-expired plan and does not shift the balance in favour of granting planning permission.
Megan Forbes is a planning lawyer at Irwin Mitchell
