The Court of Appeal has ruled planning authorities can take into account local planning policies when operating the so-called ’tilted balance’ in favour of sustainable development.
The case is important because, in recent weeks and months, development companies have been bringing a series of cases pushing for a more developer-friendly interpretation of the planning rules.
The nine-year old policy, which has gone though various revisions and much litigation, states that when a planning inspector has to decide whether or not to approve a project and is weighing the legal pros and cons, more weight should be given to approval if the development is sustainable.
The rule is set out in the National Planning Policy Framework.
The latest case, ruled on this week by the Court of Appeal, involves developer Gladman Developments. The developer is appealing against refusal of a 129-dwelling project in Corby and a 240-dwelling development in Uttlesford.
Late last month a similar case was bought, and lost, by developer Paul Newman New Homes.
In this particular case, lawyers for Gladman argued that both property inspectors had made a mistake in law when advising against the developments because, when weighing up the legal pros and cons, they considered the councils’ local planning policies.
The lawyers argued that the legislation forbade this, and that only national planning policy should he considered.
This is because of a line in the policy that refers to “the policies in the framework taken as a whole”, which they said meant the National Planning Policy Framework.
If the court had agreed, it would have made it much easier for developers to get permission for projects opposed by local councils.
However, the court dismissed the argument.
Looking at case law, judge Sir Keith Lindblom, the senior president of tribunals, said it was for the “decision-maker” to decide “which relevant policies of the development plan may be taken into account”.
“Whether and how policies of the plan are taken into account in the application of the policy comprising paragraph 11d)ii will be a matter for the decision-maker’s planning judgment, in the circumstances of the case in hand,” he said.
Citing the case law, Lindblom J said: “This accords with the Supreme Court’s understanding of paragraph 14 in the original version of the NPPF, in Hopkins Homes Ltd, this court’s in East Staffordshire Borough Council and Hallam Land Management Ltd, and that to be seen in the first instance decisions in Crane and Woodcock Holdings Ltd.”
Sir Keith Lindblom, senior president of tribunals, Lady Justice Simler and Sir Gary Hickinbottom
Gladman Developments Limited v (1) Secretary of State for Housing, Communities and Local Government
and (2) Corby Borough Council and (3) Uttlesford District Council
Court of Appeal (Sir Keith Lindblom, senior president of tribunals, Lady Justice Simler and Sir Gary Hickinbottom) 3 Feb 2021
Richard Kimblin QC and Thea Osmund-Smith (instructed by Addleshaw Goddard LLP) for the appellant
Richard Honey (instructed by the Government Legal Department) for the first respondent
