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New Judgment on NPPF Para 11(D) and Outdated Policies

Richard Honey

Mr Justice Dove has handed down judgment in the case of Wavendon Properties v SSHCLG & Milton Keynes Council [2019] EWHC 1524 (Admin) dealing with a number of alleged misinterpretations of the provisions of the new National Planning Policy Framework. 

The main issue concerned the meaning of the phrase “the policies which are most important for determining the application are out-of-date” in paragraph 11(d) of the NPPF.  This is a critical provision in the NPPF as it acts as a trigger for engaging the tilted balance.  This provision differs from that in the former 2012 NPPF, which referred to the situation where “relevant policies are out‑of‑date”. 

The judgment contained the following discussion of the meaning of the provision in the new NPPF:

“55.        … Mr Honey submitted that the correct interpretation is that the exercise required by paragraph 11(d) in relation to the assessment of the question as to whether or not the policies which were of most importance for determining the application were out-of-date is as follows. Akin with Mr Goatley, he contended that the first step was to identify which were the policies which were most important for determining the application. Having done so, it is then necessary for the decision-taker to examine each of those policies, applying the Framework and the approach in the Bloor case, to see whether they are out-of-date. Having done so, the next step required by paragraph 11(d) is an assessment of all the basket of policies most important to the decision in the round to reach a conclusion as to whether, taken overall, they could be concluded to be out-of-date or not for the purposes of the decision. If they were out-of-date then the presumption would be triggered.

56.          Mr Honey contended that there was no warrant for the interpretation that once one of the most important policies for determining the application had been found out-of-date the tilted balance would apply. He observed that the policy specifically does not say that the tilted balance would apply when “one of” or “any of” the important policies for determining the application has been found to be out-of-date. To answer the question posed by paragraph 11(d) it is necessary, having identified those policies which are most important for the determination of the application, to examine them individually and then consider whether taken in the round, bearing in mind some may be consistent and some in-consistent with the Framework, and some may have been overtaken by events and others not, whether the overall assessment is that the basket of policies is rightly to be considered out-of-date. That will, of course, be a planning judgment dependent upon the evaluation of the policies for consistency with the Framework (see paragraph 212 and 213) taken together with the relevant facts of the particular decision at the time it is being examined.   …

58.          I am satisfied that Mr Honey’s interpretation of the Framework in this connection is correct. It needs to be remembered, in accordance with the principles of interpretation set out above, that this is a policy designed to shape and direct the exercise of planning judgment. It is neither a rule nor a tick box instruction. The language does not warrant the conclusion that it requires every one of the most important policies to be up-of-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of-date for the purpose of the decision. This approach is also consistent with the Framework’s emphasis (consonant with the statutory framework) that the decision-taking process should be plan-led, and the question of consistency with the development plan is to be determined against the policies of the development plan taken as a whole. A similar holistic approach to the consideration of whether the most important policies in relation to the decision are out-of-date is consistent with the purpose of the policy to put up-to-date plans and plan-led decision-taking at the heart of the development control process. The application of the tilted balance in cases where only one policy of several of those most important for the decision was out-of-date and, several others were up-to-date and did not support the grant of consent, would be inconsistent with that purpose.”

Under the second issue, the claimant argued that the Secretary of State had misinterpreted paragraph 73 of the NPPF, the glossary definition of ‘deliverable’ and the relevant parts of the planning practice guidance.  This argument was rejected by Dove J. 

Under the third issue, Dove J also rejected an argument that a local plan policy setting numerical density thresholds and targets was inconsistent with the new NPPF.  The Judge drew attention to the clear change in national policy on density which had occurred with the introduction of a section on achieving appropriate densities in the new NPPF (paras 122-123). 

The Secretary of State’s decision was, however, quashed on the ground that inadequate reasons had been given for the Secretary of State’s conclusion that there was a five year housing land supply.  The Judge noted that this was due to the “particular and perhaps unusual circumstances” of the case.  The circumstances were that none of the parties to the appeal had suggested that there was such a supply.  The Judge concluded that, as the Secretary of State was for the first time in the decision-making process taking the view that there was a five year housing land supply, and arriving at an entirely new housing land supply figure, this called for explanation.  The conclusion was a pivotal one in the decision as it meant that the development did not benefit from the tilted balance in paragraph 11(d) of the NPPF. 

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