Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 06 March 2020 |
| Neutral Citation | [2020] EWHC 518 (Admin) |
| Date | 06 March 2020 |
| Docket Number | Case No: CO/3932/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 518 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/3932/2019
Case No: CO/4265/2019
Richard Kimblin QC and Thea Osmund-Smith (instructed by Addleshaw Goddard) for the Claimant
Richard Honey (instructed by Government Legal Department) for the First Defendant
Estelle Dehon (instructed by Uttlesford District Council) for the Second Defendant
Corby District Council did not appear and were not represented
Hearing dates: 4–5 February 2020
Approved Judgment
Introduction
These challenges by Gladman Developments Limited to two appeal decisions made by Planning Inspectors relate to the interpretation of paragraph 11(d)(ii) of the National Planning Policy Framework issued in February 2019 (“NPPF”). Does that policy require as the Claimant submits, the “tilted balance” to be struck without taking into account policies of the development plan, leaving those matters to be weighed separately under s.38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”)? The Secretary of State for Housing, Communities and Local Government, the First Defendant in both challenges, supported by Uttlesford District Council (“UDC”), the Second Defendant in CO/4265/2019, contend that the answer to this question is ‘no’; relevant development plan policies, whether favourable, unfavourable or neutral towards the development proposed may be taken into account in the tilted balance under paragraph 11(d)(ii).
Section 38(6) provides:-
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”
Section 70(2) of the Town and Country Planning Act 1990 (“TCPA 1990”) provides:-
“In dealing with an application for planning permission or permission in principle the authority shall have regard to—
(a) the provisions of the development plan, so far as material to the application,
[(aza), (aa) and (b) …..], and
(b) any other material considerations.”
In Monkhill Limited v Secretary of State for Housing, Communities and Local Government [2019] EWHC 1993 (Admin) I explained the framework for decision-making contained in paragraph 11(c) and (d) of the NPPF 2019 ([39] and [45]). That analysis was common ground between the parties to these proceedings. However, Monkhill did not address the issue raised above, nor its implications for the relationship between the tilted balance and s.38(6).
Given the nature of the main issue, on 4 December 2019, the Court ordered the applications to be adjourned to a rolled-up hearing.
In the Flitch Green appeal (CO/4265/2019 and see below) the Inspector had to apply paragraph 11(d)(i) because of the “less than substantial harm” that would be caused to heritage assets. However, he resolved that matter in the Claimant's favour and so it does not give rise to any issue in that legal challenge. In both cases paragraph 11(d)(ii) applied because the relevant local planning authority (“ LPA”) was unable to demonstrate a supply of deliverable sites to provide at least five years' supply against the local housing requirement set out in their adopted strategic policies (footnote 7 to paragraph 11 and paragraph 73 of the NPPF). Consequently, the policies which were “most important” for determining the appeals were deemed to be “out-of-date” so as to engage the tilted balance. In each of the appeal decisions it was found that the harmful effects would “significantly and demonstrably” outweigh the benefits of the proposal.
The National Planning Policy Framework
NPPF 2012
The National Planning Policy Framework was first issued in March 2012 (“NPPF 2012”). Paragraph 14 introduced the presumption in favour of sustainable development which is now to be found in paragraph 11. It gave rise to prolific litigation in the courts and resulted in a number of legal principles becoming established, some of which are referred to below.
Paragraph 14 provided: —
“At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
For plan-making this means that:
• local planning authorities should positively seek opportunities to meet the development needs of their area;
• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
– specific policies in this Framework indicate development should be restricted. 9
For decision-taking this means: 10
• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
– specific policies in this Framework indicate development should be restricted. 9”
Footnote 9 provided: —
“For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion.”
Footnote 10 qualified the presumption applicable in the case of decision-taking as follows:-
“unless material considerations indicate otherwise”
Paragraph 47 explained how LPAs should meet the objective “to boost significantly the supply of housing”.
Paragraph 49 contained the trigger by which the presumption in favour of sustainable development in paragraph 14 was engaged if an LPA could not demonstrate a 5 year supply deliverable housing sites: —
“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
NPPF 2019
The presumption in favour of sustainable development is now contained in paragraph 11: —
“Plans and decisions should apply a presumption in favour of sustainable development.
For plan-making this means that:
a) plans should positively seek opportunities to meet the development needs of their area, and be sufficiently flexible to adapt to rapid change;
b) strategic policies should, as a minimum, provide for objectively assessed needs for housing and other uses, as well as any needs that cannot be met within neighbouring areas 5, unless:
i. the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area 6; or
ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.
For decision-taking this means:
c) approving development proposals that accord with an up-to-date development plan without delay; or
d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date 7, granting permission unless:
i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed 6; or
ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.”
The sequence of the two limbs (i) and (ii) under which the presumption in favour of sustainable development may be overcome has been reversed as compared with paragraph 14 of the 2012 version. Where both limbs (i) and (ii) are engaged this is generally the logical order in which to apply them, as explained in Monkhill at [39–45].
The protection policies to which paragraph 11(b)(i) and 11(d)(i) apply are identified in footnote 6: —
“The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.”
The trigger or deeming provision by which an inadequate supply of housing land causes paragraph 11(d)(ii) to apply is now contained in footnote 7: —
“This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73); or where the...
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