Town and country planning – Planning permission – National Planning Policy Framework (NPPF) – Local planning authorities refusing applications by appellant developer for planning permission for two separate housing developments – Secretary of state dismissing appeals – Appellant applying for statutory review – Whether development plan policies to be taken into account in applying “tilted balance” – Whether tilted balance and duty in section 38(6) of Planning and Compulsory Purchase Act 2004 being separate and sequential steps – Whether tilted balance excluding exercise in paragraph 213 of NPPF – Applications dismissed
The second and third respondent local authorities refused applications for planning permission by the appellant developer for developments of up to 129 dwellings on land at Southfield, Gretton, Northamptonshire, and 240 dwellings on land off Station Road, Flitch Green, Essex, respectively.
Inspectors appointed by the first respondent secretary of state, each dismissed appeals under section 78 of the Town and Country Planning Act 1990 Act against those refusals. In both appeals, the policy for the so-called “tilted balance” under paragraph 11(d)(ii) of the National Planning Policy Framework (NPPF) applied because, in neither case was the local planning authority able to demonstrate a five-year supply of deliverable housing, so that the policies most important for determining the application were deemed out-of-date.
The High Court refused the appellant permission to apply for statutory review under section 288 of the 1990 Act: [2020] EWHC 518 (Admin). Lewison LJ subsequently granted permission to make the application.
The case raised issues: (i) whether a decision-maker, when applying the “tilted balance” under paragraph 11(d)(ii), was required not to take into account relevant development plan policies; (ii) whether the “tilted balance” and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 had to be performed as separate and sequential steps in a two-stage approach; and (iii) whether the “tilted balance” under paragraph 11(d)(ii) excluded the exercise indicated in paragraph 213 of the NPPF, which required that policies in plans adopted before its publication should be given due weight according to their degree of consistency with it.
Held: The applications were dismissed.
(1) The second part of paragraph 11 of the NPPF 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: first, where “development proposals … accord with an up-to-date development plan” (paragraph 11(c)); 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 11(d)). The two limbs of paragraph 11(d), connected by the word “or”, were disjunctive. They described two different situations in which the presumption in favour of sustainable development would be disapplied.
The first limb, in paragraph 11(d)(i), was 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 were individually identified in footnote 6. The second limb, in paragraph 11(d)(ii) went much wider. It replicated the equivalent provision in the original version of the NPPF. It provided for an assessment against “the policies in this framework taken as a whole”, which were not the subject of a footnote.
Footnote 6, which deliberately excluded policies “in development plans”, was applied to paragraph 11(d)(i), but not to paragraph 11(d)(ii). Had the government wanted to exclude development plan policy from the ambit of paragraph 11(d)(ii), it could easily have done so, but it had not.
It was neither a misinterpretation nor misapplication of paragraph 11(d)(ii), or taking into account an immaterial consideration, to have regard to development plan policies when dealing with the tilted balance question. The assessment of a development’s compliance with the policies in the NPPF could properly embrace consideration of related policies in the development plan. There was no justification for reading the exclusion in paragraph 11(d)(i) into paragraph 11(d)(ii). There was no reason to suggest that because the provision referred to an assessment “against the policies in this framework”, it meant to say “against the policies in this framework, and leaving aside the policies of the development plan”. Paragraph 11(d)(ii) did not spell out any such qualification, and was not to be read as if it did.
(2) There was nothing to prevent an approach in which the application of the “tilted balance” under paragraph 11(d)(ii) was incorporated into the decision-making under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act in one all-encompassing stage. The decision-maker was not obliged to combine in a single exercise the paragraph 11(d)(ii) assessment with the assessment required to discharge the duty in section 38(6). In principle, however, he might lawfully do so. The decision-maker had to keep in mind the statutory primacy of the development plan and the statutory requirement to have regard to other material considerations, including the policies of the NPPF and specifically the “tilted balance” under paragraph 11(d)(ii), and had to make the decision, as section 38(6) required, in accordance with the development plan unless material considerations indicated otherwise. The realistic approach in such a case was likely to be to take into account the development plan policies of relevance to the paragraph 11(d)(ii) assessment within that assessment, rather than outside it. That was not to merge the statutory presumption in favour of the development plan and the national policy “presumption in favour of sustainable development”. It was to acknowledge the existence and status of both presumptions, but also to recognise that they could be lawfully applied together.
(3) It followed that paragraph 213 of the NPPF might properly be taken into account in the balancing exercise under paragraph 11(d)(ii), and was not, in principle, of relevance only to the weighting of development plan policies under section 38(6). Neither the wording of the policy in paragraph 11(d)(ii), nor that in paragraph 213 itself, lent any support to the contention that the latter was excluded from the operation of the “tilted balance” under paragraph 11(d)(ii).
(4) In the present case, neither inspector had erred in law. Each proceeded lawfully to a decision on the section 78 appeal, in accordance with the requirements of statute, and without lapsing into a misinterpretation of the policy in paragraph 11 of the NPPF or an unlawful application of that policy.
Richard Kimblin QC and Thea Osmund-Smith (instructed by Addleshaw Goddard LLP) appeared for the appellant; Richard Honey (instructed by the Government Legal Department) appeared for the first respondent.
Eileen O’Grady, barrister
