Town and country planning – Planning permission – National planning policy framework – Appellant developer applying for outline planning permission for residential development – Planning inspector refusing application – Judge upholding decision – Appellant appealing – Whether judge interpreting paragraph 11 of National Planning Policy Framework 2018 correctly – Appeal dismissed
The appellant developer applied to the interested party local authority for outline planning permission for a residential development of 50 homes and associated facilities in the countryside, on land in Soulbury, Buckinghamshire. When the interested party failed to determine the application, the appellant appealed to the respondent secretary of state.
Paragraph 11 of the National Planning Policy Framework 2018 (NPPF) provided for “the presumption in favour of sustainable development”. By paragraph 11(d), where there were no relevant development plan policies or the most important policies for determining the application were out of date, permission would be granted unless there was a clear reason for refusing based on the application of policies which protected areas of particular importance; or any adverse impacts of doing so would significantly outweigh the benefits (the tilted balance).
An inspector appointed by the respondent dismissed the planning application because of the impact of the proposed development on the character and appearance of the rural area, contrary to policy GP.35 of the local development plan. She held that the proposed development would unnaturally extend the settlement, encroach upon the countryside, and be harmful to its rural character and appearance. As policy GP.35 was not out of date and as the interested party had a five-year housing land supply, the inspector decided that the presumption in favour of the development under paragraph 11(d) was inapplicable. She therefore applied the planning balance in section 38(6) of the Planning and Compulsory Purchase Act 2004, concluding that the housing benefit taken with the more general economic benefits of the proposal did not outweigh the specific harm identified.
The High Court refused the appellant’s application to quash that decision: [2019] EWHC 2367 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The inspector and the judge both rightly acknowledged that there were elements of GP.35 that were more relevant to a reserved matters application (or a full planning application) than to an outline application. However, the judge did not see GP.35 as just a reference point for topics relevant to the assessment of the impact of the development on the character and appearance of a rural area. He said it gave policy weight and significance to those topics at the stage when an outline planning permission was being considered. The court agreed with that analysis and the judge’s interpretation of the policy; the interested party’s understanding of its own policy and the inspector’s interpretation of it were correct.
(2) The first trigger for the application of the tilted balance under paragraph 11(d) was “where there are no relevant development plan policies”. That described the situation where there was no policy in the development plan that was relevant to the decision whether the application should be granted. Paragraph 11(d) was concerned with the entire range of applications for which planning consent was required and not just housing developments. What was relevant in the context of one type of planning application might be irrelevant in another. Moreover, the number of policies that were relevant would vary from case to case and only one or two might be truly pertinent to the determination of the application under consideration.
The concept of “relevance” meant that the policy or policies had to have a real role to play in the determination of the application, but there was no requirement that they should be enough in themselves to enable the decision maker to grant or refuse that application. “Relevant” could not mean, “determinative”. The first trigger could not be activated if there was a relevant policy in the local plan, as there was here.
In a case that involved a housing application, there was no reason to restrict the concept of “relevance” to policies that were specifically targeted at the type of development under consideration (such as affordable housing, or a block of flats) or the location of the proposed development (such as policies about building in the countryside). A general development control policy might be capable of having a real role to play in the outcome of an application; its importance was a different matter, which would depend on the facts and circumstances of the particular case, and was a matter of value judgment on which the expertise of a planning inspector would carry significant weight.
Since the inspector and the judge correctly concluded that GP.35 was not confined in its ambit to matters of detail arising only at the reserved matters stage, the question whether that policy was relevant and how important it was to the determination of the application under consideration were quintessential matters of planning judgment.
(3) The second “trigger” for the application of the tilted balance was “where the policies which were most important for determining the application were out-of-date”. That necessarily involved an evaluation by the decision maker of which of the relevant policies in the local plan were the most important, and whether they accorded with current national policy. As the judge and the inspector both found, a policy was not out-of-date simply because it was in a time-expired plan.
The judge was right to find that the second trigger contained 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: Wavendon Properties Ltd v Secretary of State for Housing Communities and Local Government and another [2019] EWHC 1524 (Admin), [2019] PTSR 2077; [2019] PLSCS 108 considered.
The use of the plural “policies” embraced the singular, avoided linguistic awkwardness and made sense. The alternative construction would mean that the tilted balance would apply (in the absence of the exceptions) despite the presence of an up-to-date, self-contained, site and development policy that was the crucial policy, merely because that policy was the sole survivor in the local plan. The judge’s approach made sense and accorded with a common-sense interpretation of the language used, taken in context.
Christopher Lockhart-Mummery QC and Yaaser Vanderman (instructed by EMW Law LLP) appeared for the appellant; Guy Williams (instructed by the Government Legal Department) appeared for the respondent.
Eileen O’Grady, barrister
