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High Court Considers When Policies Can Be Out of Date for NPPF Para 11(D)

Richard Honey

Mr Justice Dove has handed down judgment in the case of Peel Investments North Ltd v SSHCLG & Salford CC [2019] EWHC 2143 (Admin).  The judgment deals with the circumstances in which development plan policies could be out-of-date for the purpose of triggering the tilted balance in paragraph 11(d) of the NPPF, and the right approach to considering whether there is a five year housing land supply for the purposes of paragraph 73 of the NPPF. 

The case concerned proposals for up to 600 homes, a marina and other development, in Worsley in Salford.  The Secretary of State had rejected the developer’s appeal and refused planning permission.  Dove J upheld the Secretary of State’s decision and dismissed the High Court challenge. 

The claimant developer’s grounds of challenge to the decision included a number of arguments that the Secretary of State had erred in deciding that the policies were not out-of-date. 

The claimant argued that where a development plan had passed the end of the plan period, all the policies in the plan were, as a matter of law, out-of-date.  This argument was based on the statutory provisions governing local plans and the Supreme Court’s decision in Suffolk Coastal.  This was rejected by Dove J.  He held that “the notion of a policy being out-of-date is one which exists within the structure of” the NPPF and said at [58]-[59]:

“In my judgment it is critical to note that there is nothing in the relevant provisions of the Framework to suggest that the expiration of a plan period requires that its policies should be treated as out-of-date. Indeed, to the contrary, the provisions of paragraph 213 specifically contemplate that older policies which are consistent with the Framework should be afforded continuing weight. Furthermore, I would entirely accept and adopt the formulation of the approach to the question of whether a policy is out-of-date given by Lindblom J in Bloor Homes. It will be a question of fact or in some cases fact and judgment. The expiration of the end date of the plan may be relevant to that exercise but it is not dispositive of it, nor did Lindblom J suggest that was the case.”

“that is a policy concept to be interpreted and applied within the context of the Framework and is not, therefore, to be defined by elements of the statutory framework which are not referred to by the Framework in this connection at all. Indeed, the statutory framework is consistent with the provisions of paragraph 213 of the Framework in that this statutory material does not, for instance, suggest that once the plan period for an element of the development plan has expired that plan ceases to be part of the development plan for the purposes of exercising the statutory discretion as to whether or not to grant planning permission, or should be treated differently in the decision-taking process.”

In relation to the claimant’s contention that a plan should be considered out-of-date where policies providing for housing had not been saved (or were time-expired), but where the environmental protection policies continued to be part of the plan, the Judge commented at [66]:

“It is very far from uncommon to have policies in a plan related to environmental protection whose objectives will, and are intended to, continue well beyond the end of a plan period. Whilst, of course, when a local development document is formulated it is formulated as a whole, and is intended to present as a coherent suite of policies, that objective is not inconsistent with the inclusion of some environmental policies being intended and designed to operate on a longer time scale than that which may be contemplated by the plan period. The kind of policies to which this might apply are policies such as Green Belt (one of the characteristics of which is its “permanence”), or policies pertaining to environmental assets such as those heritage assets or internationally protected and irreplaceable habitats. It would be both counter-intuitive, and contrary to long standing provisions of national policy, if policies in a development plan protecting these interests were deemed out-of-date at the expiration of a plan period.”

The claimant also argued that the passage of time was central to whether a policy was out-of-date.  The Judge endorsed the Secretary of State’s approach that “passage of time per se is not sufficient to conclude that a policy is out-of-date, but the question properly understood was whether or not the passage of time had led to the policy being overtaken by events” [61].  Dove J said at [65]:

“the exercise required by paragraph 213 of the Framework and the Bloor Homes test is not one which is dictated simply by the passage of time, but rather an assessment of consistency of the Framework, and the factual circumstances in which the policy is being applied including, amongst other things, what the Inspector characterised as “results on the ground”.”

The claimant argued in addition that the decision was unlawful as it had equated consideration of outdatedness with consideration of whether the policies were consistent with the NPPF.  The Judge rejected the contention that this is what the Secretary of State had done, commenting at [68]:

“it is undoubtedly right that the requirements of paragraph 213 of the 2018 Framework, taken together with the observations of Lindblom J in paragraph 45 of Bloor Homes, represent the correct approach to determining whether a particular policy is out-of-date”. 

A separate issue raised in the challenge was whether there was a qualitative element to the five year housing land supply sought by the NPPF, or whether it was a purely numerical exercise based on the number of units.  The issue arose because Salford’s housing land supply was over 13 years, but was dominated by city centre apartments, when there was an unmet need for family houses and affordable housing.  Dove J concluded on this point at [81]:

“The requirement to demonstrate a deliverable five year housing land supply is one which is purely quantitative. It involves a calculation of the deliverable number of units within the five year time period, and nowhere in the text of the policy pertinent to how the five year housing land supply is to be assessed is there any suggestion that the qualitative nature of that supply (including its mix of house type or tenure) has any part to play in determining whether there is a qualifying five year housing land supply available to a local planning authority. That is not to say that that those qualitative issues are not relevant to the planning balance.”

There were a number of other grounds of challenge which were all either refused permission, or rejected, at the substantive hearing. 

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

The judgment can be found here.