In Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 104; [2021] PLSCS 28, the Court of Appeal upheld the High Court’s decision that regard can still be given to the development plan where it is out-of-date under the tilted balance test in paragraph 11(d)(ii) of the National Planning Policy Framework.
The appellant applied for planning statutory review following the High Court upholding the refusals of planning permission for developments of up to 129 dwellings on land at Southfield, Gretton, Northamtonshire, and up to 240 dwellings off Station Road, Flitch Green, Essex.
Paragraph 11(d)(ii) of the NPPF contains the “tilted balance” test, which states that there is a presumption in favour of granting planning permission where there are no relevant development plan policies, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits. The tilted balance had applied for both developments, as the local planning authority in each decision was unable to demonstrate a five-year supply of deliverable housing sites, so that the policies most important for determining the application were deemed out-of-date.
The issues in this case were:
- whether a decision-maker is required to disregard relevant policies of the development plan; and
- whether it is necessary for the tilted balance and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 (that determination be made in accordance with a development plan unless material considerations indicate otherwise) to be performed as separate and sequential steps in a two-stage approach.
The Court of Appeal concluded that decision-makers are not legally bound to disregard policies in the development plan when applying the tilted balance, as sometimes it will make sense to assess the development’s compliance with the development plan policies.
In order to properly consider the adverse impacts and benefits of the development, it may be necessary to consider both NPPF policies and policies in the development plan. It is a matter for the decision-maker as to whether and how policies of the plan are taken into account. The court also confirmed that the section 38(6) statutory duty and the tilted balance exercise may be inter-related; the decision-maker can combine these into a single exercise, although they are not required to do so.
The case confirms that an out-of-date development plan does not automatically create a presumption in favour of granting planning permission, as development plan policies may still be considered.
Megan Forbes is a solicitor in the Planning Department at Irwin Mitchell
