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Court of Appeal Decision on NPPF Para 11d Outdated Policies

Richard Honey

The Court of Appeal has handed down its decision in the case of Peel Investments v Secretary of State for Housing, Communities & Local Government [2020] EWCA Civ 1175.  The two issues arising on the appeal were (1) the correct interpretation of the term “out-of-date” in paragraph 11d of the National Planning Policy Framework (NPPF), and (2) the proper application of policies contained within local plans which are time-expired or lack policy in respect of the strategic issue of housing supply.  

The Court of Appeal endorsed the position of the Secretary of State in the appeal, concluding:

  • there is nothing in paragraph 11d of the NPPF to suggest that the expiry of the plan period automatically renders the policies in the plan out-of-date
  • the careful and precise analysis of paragraph 14 of the 2012 NPPF carried out by Lindblom J (as he then was) in Bloor Homes was correct and applies to the revised terms of the presumption in favour of sustainable development in paragraph 11d of the 2018/2019 NPPF
  • policies are out-of-date for the purposes of paragraph 11d of the NPPF if they have been overtaken by things that have happened since the plan was adopted, either on the ground or through a change in national policy, or for some other reason, so that they are now out-of-date
  • whether a policy is out-of-date and, if so, with what consequences, are matters of pure planning judgement, not dependent on issues of legal interpretation
  • a plan without strategic housing policies is not automatically out-of-date for the purposes of paragraph 11d
  • although a local plan is intended to present as a coherent suite of policies, that objective is not inconsistent with the inclusion of some environmental protection policies being intended and designed to operate on a longer timescale than the plan period
  • it is obvious that many policies will not expire with the plan but, rather, will survive beyond the plan period

The Secretary of State submitted that whether a policy has been overtaken by events that have occurred since it was adopted was a question related to the substance of the policy, and not merely a function of time passing, and also that the appropriate way to consider whether a policy has been overtaken by a change in national policy is to consider, in line with paragraph 213 of the NPPF, the policy’s degree of consistency with the NPPF.  

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