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Judgment on NPPF Para 11(d)(ii) Tilted Balance

Richard Honey

Mr Justice Holgate has handed down judgment in Gladman Developments Ltd v SSHCLG & Corby BC & Uttlesford DC [2020] EWHC 518 (Admin), a rolled-up hearing in two linked challenges under s288 of the Town and Country Planning Act 1990.  The Judge refused permission, concluding that all four issues were unarguable. 

Gladman argued that it was a misinterpretation of the tilted balance in paragraph 11(d)(ii) of the NPPF to have any regard to the development plan or its 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. 

Mr Justice Holgate decided that paragraph 11(d)(ii) did not require development plan provisions to be excluded from consideration and that decision-makers may take them into account when conducting the tilted balance exercise.  The Judge concluded that paragraph 11(d)(ii) did not exclude consideration of development plan policies in the tilted balance.  He said that it was not sensible to divorce the consideration of development plan policies from the tilted balance exercise because the need for market and affordable housing was likely to gain strength from development plan policies which validate that need. 

Holgate J also accepted the Secretary of State’s submission that there was no legal justification for requiring the tilted balance in paragraph 11(d)(ii) and the s38(6) PCPA 2004 balance to be applied in two separate stages in sequence.  There is nothing in the operation of the two presumptions which requires them to be applied separately in two stages.  The Judge concluded that it was permissible for a decision-maker, having assembled all the relevant material, to apply the two balances together or separately.  He commented that the position is no different in substance if the decision-maker applies an overall judgement to all relevant considerations which takes into account the presumptions in both paragraph 11(d)(ii) and s38(6). 

Additionally, it was common ground between the parties, and endorsed by the Judge, that the effect of NPPF footnote 7 where there was not a five-year housing land supply was simply to trigger paragraph 11(d) and that it did not render any policies of the development out-of-date.  Mr Justice Holgate noted that where paragraph 11(d) is triggered due to the housing land supply position, the development plan may be recently adopted and up-to-date in all material respects.  The shortage of housing land may have resulted from historic problems or problems pre-dating the development plan, or be a relatively recent or short-lived problem.  He said that whether policies are in fact out-of-date and, if so, in what respects, would remain to be assessed by the decision-maker. 

Holgate J also said that where paragraph 11(d)(ii) is triggered because of a housing land supply shortage, it is for the decision-maker to decide how much weight should be given to the policies of the development plan, including the “most important policies” referred to in paragraph 11(d).  This should involve consideration of whether or not the policies are in substance out-of-date and, if so, for what reasons.  A decision-maker may also take into account for example the nature and extent of any housing shortfall, the reasons for the shortfall, the steps being taken to remedy the shortfall, and the prospects of the shortfall being reduced in the future.  The Judge made clear that decision-makers may conclude that development plan policies should be given substantial or even full weight.

Mr Justice Holgate also made a wider point in relation to the interpretation of planning policy by courts, namely that the meaning of policies must be considered objectively, having regard to the full range of circumstances in which they may be applied, and not through the lens or prism of a party which has been unsuccessful in a planning decision.  He also reminded parties and advocates of the Courts’ warnings against excessive legalism, especially in relation to alleged misinterpretations of policy. 

Gladman also argued that the Corby Inspector irrationally gave the economic benefits of house-building and occupation reduced weight in the decision because they are benefits of all housing development.  Holgate J concluded that it was legitimate to take into account the presence or absence of a unique quality about a development’s benefits and that, if a decision-maker does so, it is for him to determine the weight to be attached to the presence or absence of that quality.

The Claimant had produced a witness statement exhibiting other decision letters and contending that the errors alleged in the challenge were prevalent amongst planning inspectors.  Mr Justice Holgate accepted the Secretary of State’s submission that the evidence was irrelevant to the issues to be decided by the Court.  The Judge made clear that parties should not seek to file evidence of this kind in future challenges.  He confirmed that the general principle remains that evidence in s288 challenges must be confined to the material which was before the decision-maker and also reiterated that witness statements should not make submissions. 

In another, separate case brought by Gladman against the Secretary of State’s refusal on appeal of outline planning permission for 110 houses near Lawford in Tendring district, Mr Timothy Mould QC, sitting as a Deputy High Court Judge, refused permission to bring the claim at an oral permission hearing on 25 February 2020.  The Lawford case raised some of the same issues as the Corby and Uttlesford cases, but also issues on securing SANGS mitigation in relation to a European habitats site to allow a conclusion of no adverse effect on integrity and on the utility of a biodiversity net gain calculation.

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