The basics #3 - weight vs. date
Weighing “out of date” policies in the balance
Let’s try to forget about the news for just 2 minutes and return to some #planorak basics.
We’ve talked a bit about the tilted balance.
But how does that policy balance fit with the legal balance in section 38(6) between the development plan and “other material considerations” (on the meaning of that harmless little phrase, see an earlier post)?
If development plan policies are “out of date” under §11(d) NPPF, how much weight do they attract under section 38(6)?
In the halcyon days of the 2012 NPPF, some thought (see golden oldies like Crane) that once a policy is “out of date”, conflict with it can’t attract much weight in the planning balance.
As it turns out, that’s WRONG.
The caselaw on this is vast, so here are some edited highlights:
“Out of date” either means either (a) deemed out of date thorough e.g. no 5 year housing land supply (see NPPF footnote 7), or (b) policies which are “overtaken by things that have happened since it was adopted, either on the ground or in some change in national policy, or for some other reason”: Bloor Homes.
So the “acid test” for whether or not a policy is out of date is the extent to which it is consistent with the NPPF: Gladman v SSHCLG and Central Beds.
Which means that old policies in time-expired plans can be up to date: Peel Investments.
The NPPF doesn’t prescribe how much weight you should give to “out of date” policies. Weight’s always a question of planning judgment for decision-makers (not law for judges): Hopkins Homes in the Supreme Court (I acted for Hopkins Homes).
Weight depends on the circumstances e.g. (in a case where the LPA lacks a 5 year supply of housing) the extent of housing land supply shortfall and the action being taken by the local planning authority to address it: Hallam Land in the Court of Appeal (I acted for the Secretary of State).
There can be a public interest in decisions following a coherent - if old - set of policies rather than no plan at all: Gladman v Daventry DC.
That said, we come back to the “acid test” in §213 of the NPPF, which tells us that “due weight” should be given to pre-NPPF policies “according to their degree of consistency with this Framework”.
What could be simpler?
To take a well-trodden example:
Pre-NPPF development plans up and down the land deemed “open countryside” to be everything outside fixed settlement boundaries, and applied a blanket policy of protection to that countryside - for its own sake. That followed the old PPG7 approach. But the old approach is inconsistent with the NPPF’s distinction between:
“Valued” landscapes (meaning of that phrase for a later post!), which are to be protected; and
Other landscapes, which are to be recognised in the planning balance.
As Mrs Justice Lang said in the Telford and Wrekin case, unlike PPG7, the NPPF does not include a blanket protection of the countryside for its own sake. So a “blanket protection”-style countryside policy is inconsistent with the NPPF’s approach and is - at the very least - at risk of being found out of date.
However, as those familiar with appeals over much-litigated policies like DM4 in Central Beds, policy S7 in Uttlesford and GD2 in Wealden will know well (and there are many others!) regardless of their inconsistency with the NPPF, these sorts of policies have often garnered at least “moderate” weight in the planning balance (depending on the state of other matters like housing land supply).
In a nutshell: “out-of-date” doesn’t dictate weight.
Stay well, #planoraks.
