Gladman argued that it was a misinterpretation of the tilted balance in paragraph 11(d)(ii) of the NPPF to have any regard to development plan policies when answering the paragraph 11(d)(ii) question – whether any adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits of doing so, when assessed against the policies in the NPPF taken as a whole.  

The issues in the appeal were, first, whether a decision-maker, when applying the tilted balance under paragraph 11(d)(ii), is required not to take into account relevant policies of the development plan, and, secondly, as a connected issue, whether it is necessary for the tilted balance and the duty in s38(6) of the Planning and Compulsory Purchase Act 2004 to be performed as separate and sequential steps in a two-stage approach.

On the first issue, the Court of Appeal concluded:

• the provisions on decision-taking in 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 s70(2) of the Town and Country Planning Act 1990 and s38(6) of the PCPA 2004, in the specific circumstances to which they relate;
• decision-makers are not legally bound to disregard policies of the development plan when applying the tilted balance under paragraph 11(d)(ii);
• it is 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 exercise of assessing a development’s compliance with the policies in the NPPF could properly embrace consideration of related policies in the development plan, and sometimes this would make good sense because of the relationship between the two;
• the performance of the statutory duty under s38(6) and the performance of the tilted balance exercise may be inter-related, and conflict or compliance with development plan policies can bear on the assessment required by the NPPF policy in paragraph 11(d)(ii);
• the policies of the development plan will often inform the balancing exercise required under paragraph 11(d)(ii);
• in many cases it will facilitate the assessment of adverse impacts and benefits in the tilted balance to consider not only the relevant policies of the NPPF but also the corresponding policies of the development plan;
• a complete assessment under paragraph 11(d)(ii), in which adverse impacts and benefits are fully weighed and considered, may well be better achieved if relevant policies of the development plan are taken into account;
• whether and how policies of the plan are taken into account in the application of paragraph 11(d)(ii) will be a matter for the decision-maker’s planning judgment, in the circumstances of the case in hand.

On the second issue, the Court of Appeal concluded:

• there is nothing to prevent an approach in which the application of the tilted balance under paragraph 11(d)(ii) is incorporated into the decision-making under s70(2) of the TCPA 1990 and s38(6) of the PCPA 2004 in one all-encompassing stage;
• the presumptions in both paragraph 11(d)(ii) and s38(6) can lawfully be applied together;
• a decision-maker is not obliged to combine in a single exercise the paragraph 11(d)(ii) assessment and the assessment required to discharge the duty in s38(6), although they lawfully can;
• if this is how it is done, the decision-maker must keep in mind the statutory primacy of the development plan and must make the decision, as s38(6) requires, in accordance with the development plan unless material considerations indicate otherwise – so that the integrity of the section 38(6) assessment can be assured;
• it is not necessary to consider twice, in separate steps, matters that arise both under the relevant policies of the development plan and under the policies of the NPPF.

Richard Honey appeared for the Secretary of State, instructed by the Government Legal Department.  

The judgment is available here.