Presuming too much - case notes on tilted balances

NPPFThe basics
Written By Zack Simons

Pity the poor #planoraks. You think… you know what, I’m going to have just one weekend off. Properly off. Digital detox. Have a nice socially distanced potter in the park. I mean, come on. After the year we’ve had… what more could possibly happen?

Ha! You fools. Because of course, it was Saturday morning when the round-the-clock work machines at the Ministry decided to launch a brand spanking new consultation. On anything big? Nah. Just a revised National Planning Policy Framework, a draft National Model Design Code and some very important guidance notes on said code. So nothing to worry about.

Simon Ricketts somehow produced a summary of the key NPPF changes in under an hour: here. There’s enough in there to fill a month of blog posts, and I’m going to come back to some of the biggies next week.

So lots to come. And, yet again, we’re called on to sharpen our consultation pencils. Still - to mangle a bit of Kierkegaard - we live forward, but we understand backward. So before launching ourselves headlong into the future, can we spend just 5 minutes on the month we’ve just managed to get through. Because January 2021 was a bumper month in the planning courts. If you’re after one to watch, keep a beady eye on the recently threatened challenge to the South Oxfordshire Local Plan. Which, if it’s brought, we’ll be coming back to in these pages. Once or twice, I expect.

But in the meantime, January brought 3 big decisions to talk about from the Court of Appeal on the operation of 2 important policies in the National Planning Policy Framework. 2 big policy presumptions. Well, at least 1 of them’s a presumption, but more on that in a moment. And note well - these are bits of national policy not currently up for consultation. So these are cases you’ll want in your armoury. Particularly - as I explain below - when it comes to one of the big ideas which is currently up for consultation.

What are the cases?

What do you actually need to know? Right. 1 minute for the first case, 20 seconds for the second, and 2 minutes for the third. Set your watches. Here we go.

Paul Newman Homes

The tilted balance. We’ve talked about this before - here’s your starter-for-10 crib sheet. And here’s a note on how you weigh “out of date” development plan policies in the tilted balance. So. The Court of Appeal has now confirmed the approach taken some of the earlier High Court cases, and your 5 simple-as-can-be headlines are that:

  1. The 1st "trigger" for the application of the tilted balance in §11(d) is "where there are no relevant development plan policies". That describes the situation where there is no policy in the development plan that is relevant to the decision whether the application should be granted or refused. That’s wide enough to cover cases scenario where there is no development plan at all; or where there is a plan, but it pre-dates the 2004 Act, and none of the policies in it that might have been relevant has been saved.

  2. "Relevance" here just means that the policy must have a real role to play in the determination of the application (and that can include general development management policies), but there is no requirement that it should be enough in itself to enable the decision maker to grant or refuse that application. "Relevant" does not mean "determinative".

  3. This first trigger cannot be activated if there is even a single “relevant” policy in the local plan. All of which means - as I said here - that this trigger won’t be activated very often.

  4. Which takes us to the 2nd trigger, i.e. “where the policies which are most important for determining the application are out-of-date." On that, the Court of Appeal has now confirmed the “Wavendon basket” approach I described here. Which means - in a nutshell:

    • The first step in the exercise is to identify the policies that are the most important for determining the application - i.e. which ones go into the basket;

    • The second step is to examine each of those policies to see if it is out-of-date; and then

    • The third is to stand back and assess whether, taken overall, that basket of policies could be concluded to be out-of-date for the purposes of the decision.

  5. The Court of Appeal accepted that there may be cases where there’s only a single policy in the basket.

None of that changes the law, but given this is the most recent case on this ever-vexed topic, and it’s got the “Court of Appeal” stamp of approval, Paul Newman should generally be our “go to” case for the operation of §11(d).

Monkhill

When is there a “clear reason for refusing” permission under §11(d)(i) NPPF?

In particular, can §172 NPPF which says that "great weight should be given to conserving and enhancing landscape and scenic beauty" in an AONB provide that kind of clear reason for refusal under §11(d)(i)?

Well… in short…and to cut directly to the chase… yes. It can.

Asda v Leeds CC

The NPPF’s town centre policies reside here. You may remember them. They’re the ones which are totally inconsistent with the new Class E. But that’s for another day. The key point is §90, which says that:

“Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the considerations in paragraph 89, it should be refused.”

“Should be refused”. Full stop? The language sounds emphatic. What does it actually mean?

In this case, Leeds CC granted planning permission against officers’ advice for a retail-led scheme at the former Benyon Centre, which is supposed to include a new Lidl and a B&M Homestore. The site is about 80m outside the designated district centre. The reason given was that “members placed greater weight on the benefits of the scheme in terms of economic development, regeneration, increase in retail offer and job creation, and considered these benefits outweighed … any harm the proposal would have on vitality and viability of Middleton District centre.”

But hang on a minute, said Asda. Members can’t just skirt around §90 NPPF. If it’s accepted that a scheme will cause a "significant adverse impact" on the vitality and viability of the town centre - as it was here - then, said Asda, the clear wording of §90 – "should be refused" – creates a policy presumption or expectation that planning permission will be refused.

The Court of Appeal wasn’t having that. Sir Keith Lindblom said:

  1. National planning policy is not the work of those who draft statutes or contracts, and does not always attain perfection. The language of policy is usually less precise, and interpretation relies less on linguistic rigour. When called upon – as often it is nowadays – to interpret a policy of the NPPF, the court should not have to engage in a painstaking construction of the relevant text. It will seek to draw from the words used the true, practical meaning and effect of the policy in its context. Bearing in mind that the purpose of planning policy is to achieve "reasonably predictable decision-making, consistent with the aims of the policy-maker", it will look for an interpretation that is "straightforward, without undue or elaborate exposition"

  2. The words "should be refused" have a clear meaning, which requires no elaboration by the court. They do not mean "must be refused". The policy is not imperative. It does not dictate a refusal of planning permission whenever the development proposed is likely to have a "significant adverse impact" on the "vitality or viability" of a town centre.

  3. Unlike others in the NPPF, the policy in §90 does not identify factors that may tell against the proposition that the application "should be refused". It is not qualified by a clause beginning with a word such as "if" or "unless" or "provided". But implicit in a policy of this kind, as in many that bear on decision-making, is the need for planning judgment to be exercised in its application.

  4. It is not necessary to apply to the policy in §90 the label of "presumption". The meaning and effect of the policy are entirely clear without it. What §90 does is to establish, in national planning policy, a proposition that will indicate a refusal of planning permission if it is not overbalanced by other considerations. It does not matter whether we call that a "presumption" or an "effective presumption" or an "expectation", or something else of that kind. The effect of the policy is the same. Whenever a decision-maker finds there is likely to be a "significant adverse impact" on the "vitality and viability" of the town centre, this will count as a negative factor with the force of government policy behind it. It will go against the proposal as a material consideration. Other policies in the NPPF may support the proposal. These too will be "material considerations" to which appropriate weight must be given.

  5. Even if the policy in §90 is rightly regarded as containing a "presumption", the "presumption" is one that can be overcome by countervailing factors, which are not specified or limited by the policy itself – but might include, for example, planning benefits such as the creation of jobs in an area where unemployment is high and an uplift to the local economy by the development proposed. Inevitably, this will be more difficult or less according to the nature and degree of the "significant adverse impact" the development is likely to have. The potential harm will vary from one proposal to another. Giving appropriate weight to it is a matter of planning judgment for the decision-maker.

And why is it relevant to the proposed new changes to the NPPF? Well. The new §133 begins “Development that is not well designed should be refused, especially where it fails to reflect local design policies and government guidance on design…”. Two things to say about that language:

  1. The NPPF already says that “permission should be refused for development of poor design”; but anyway…

  2. We know after Asda that the “should be refused” formulation isn’t quite as emphatic as it may sound. The idea is simple. Poor design is a negative factor in the balance. It will go against the proposal as a material consideration. But where the balance is struck between those factors was, is and will still be a matter of planning judgment.

In the end, what does all of that tell us? Generally, it tells us to beware over-legalistic approaches to national policy. Because time after time after time after time, the message from the Court of Appeal has been emphatic. This stuff isn’t written by lawyers, it isn’t written for lawyers, and it shouldn’t be read as if it were law. (On the other hand, lawyers sometimes have to tell us what the policies actually mean so, thank goodness, we aren’t totally out of a job. Not yet anyway.)

In the meantime, stay well #planoraks. And carry on planning!

Zack Simons
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