Tilts, balances & baskets
Paragraph 11(d) of the revised NPPF - how is it triggered? And is it as tilted as it used to be?
March 2012 was a bumper month for planning lawyers.
On 21st March, Lord Reed confirmed that the interpretation of planning policy is a question of law (i.e. for us lawyers), not one of judgment (i.e. for you planners): Tesco Stores Ltd v Dundee City Council [2012] UKSC 13.
On 27th March, the Government published the first NPPF, in which the “golden thread” - the “presumption” in favour of sustainable development - was crystallised at paragraph 14 into something we're now 8 years into calling “the tilted balance”. Innocuous phrases like “where the development plan is absent, silent or relevant policies are out-of-date” generated reams of High Court litigation. And led to the what the Court of Appeal now regularly deprecate as the “over-legalisation” of the planning system and what are supposedly its very simple precepts.
When questions get over-complicated, don’t blame the politicians, or the policy-drafters, or the decision-takers… blame the lawyers.
The 2018 revisions to the NPPF were supposed to change all that.
The new §11(d) abandons more florid concepts like “absence” or “silence,” and sticks to the basics:
“where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless…”
Footnote 7 makes clear that not having a 5 year housing land supply or failing the Housing Delivery Test will mean that the policies which are most important for determining the application are out-of-date. Which will trigger the “tilted balance”.
So far so straightforward.
But since the middle of 2019, the lawyers have returned. A series of High Court judgments have now pored over this apparently simple policy language in excruciating detail.
The starting point was July 2019, and Mr Justice Holgate’s 15 point plan (!!!) for the operation of paragraph 11(d) in Monkhill v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1993 (Admin). I won’t paste them here, but see §39 of the judgment. The focus in that case was on 11(d)(i), so the circumstances in which restrictive policies (aka “footnote 6 policies”) provide a “clear reason” for refusal.
4 more recent judgments (links and references at the end of the post) have focussed on 11(d)(ii), i.e. the circumstances which may lead to the tilting of the balance, and some headlines are:
“Out of date” does not mean time-expired. Put the other way round, a policy can remain “up to date” even if it forms part of a time-expired plan.
The real question is whether or not the policy has become inconsistent with the NPPF, i.e. 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.
Even if one policy is out of date, it doesn’t follow that “the policies which are most important for determining the application are out-of-date”. Instead, the decision-maker should consider the “basket” of relevant policies and reach a judgment on whether they’re substantively out of date as a whole.
That 1 or more policies in the basket might themselves be out of date is relevant but not determinative of whether the basket of most important policies is out of date overall.
The “no relevant development plan policies” bar is a very low one - even one relevant policy is enough for LPAs to avoid this trigger. That policy may exist in a time-expired plan. Indeed, the policy can be out-of-date (!!!) so long as it’s “relevant”. Relevant means only some real role (not fanciful or tangential) in determining the application. It can include general policies of wide application, even if not controversial on the facts of the application. On that approach, the first clause of §11(d) is very unlikely to apply - regularly or at all.
If the tilted balance is engaged, the Gladman case confirms that development plan policies can be weighed in that balance. Development plan policies are not excluded, or relevant only to the balancing exercise under section 38(6) of the Planning and Compulsory Purchase Act 2004. So the tilted balance is not limited only to other policies in the NPPF.
Case references and links to Bailii are:
Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2020] EWHC 518 (Admin)
Peel Investments (North) Ltd v Secretary of State for Housing, Communities and Local Government [2019] EWHC 2143 (Admin)
Wavendon Properties Limited v Secretary of State of Housing Communities and Local Government, Milton Keynes Council [2019] EWHC 1524 (Admin)
Paul Newman New Homes Ltd v Secretary of State for Housing Communities and Local Government [2019] EWHC 2367 (Admin)
Appeals are outstanding to the Court of Appeal in the Peel case and the Paul Newman case, and Mr Justice Holgate’s ink is barely dry on the Gladman decision. So watch this space. No doubt before long Lord Justice Lindblom and the Court of Appeal will be telling us what §11(d) actually means. Until then - we’re stuck with that basket metaphor!
But how much does this matter?
The tilted balance used to substantially increase the prospects of securing a permission. But there are now many - in particular those at Gladman - who have reached the view that the tilted balance isn’t as tilted as it used to be. In a statement issued after its recent loss in the High Court (full disclosure: I acted for Gladman on one of the planning appeals under review in that case, albeit I was not involved in the High Court challenge), Gladman said that:
“Fewer than one in five of the 67 major housing appeals where the titled balance was applied in the first nine months of 2019 were successful.
Perversely, this was less than the overall success rate for major housing appeals.
The application of the tilted balance appeared to reduce the chances of the appeal being allowed.”
And Gladman should know! From 2012 - 2019, Gladman was responsible for more planning appeals than numbers 2, 3 and 4 on the table combined.
We’ve come a long way from the heady days of 2012. How this current run of refusals on appeal squares with the Government’s objective of “significantly boosting the supply of homes” or reaching 300k net dwellings a year is anyone’s guess. At the very least, we should hope that the scale of the crisis is reflected in changes to the formula for calculating Local Housing Need promised in the March 2020 Planning for the Future paper.
