Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Sir Gary Hickinbottom |
| Judgment Date | 03 February 2021 |
| Neutral Citation | [2021] EWCA Civ 104 |
| Date | 03 February 2021 |
| Docket Number | Case No: C1/2020/0542/QBACF |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 104
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(PLANNING COURT)
THE HONOURABLE MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Keith Lindblom, SENIOR PRESIDENT OF TRIBUNALS
Lady Justice Simler
and
Sir Gary Hickinbottom
Case No: C1/2020/0542/QBACF
and
Richard Kimblin Q.C. and Thea Osmund-Smith (instructed by Addleshaw Goddard LLP) for the Appellant
Richard Honey (instructed by the Government Legal Department) for the First Respondent
Hearing dates: 9 and 10 November 2020
Approved Judgment
The Senior President of Tribunals:
Introduction
At the heart of this case is a question of policy interpretation. Such questions have become familiar work for the Planning Court, and this court too, since the publication of the National Planning Policy Framework (“the NPPF”) in March 2012. This case concerns the policy for the “presumption in favour of sustainable development” in paragraph 11 of the revised versions of the NPPF published in July 2018 and February 2019 – as have two other recent appeals to this court ( Monkhill Ltd. v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 74, and Paul Newman New Homes Ltd. v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 15). The original version of the policy, in somewhat different terms, had itself been considered in several appeals, including, in the Supreme Court, Hopkins Homes Ltd. v Secretary of State for Housing, Communities and Local Government [2017] 1 W.L.R. 1865, and in this court, Barwood Strategic Land II LLP v East Staffordshire Borough Council [2018] P.T.S.R. 88, and Hallam Land Management Ltd. v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808.
Permission to apply for planning statutory review, under section 288 of the Town and Country Planning Act 1990, was granted by Lewison L.J. on 22 May 2020. The appellant, Gladman Developments Ltd., had appealed against the order of Holgate J., dated 6 March 2020, refusing permission to apply for planning statutory review of the decisions of inspectors appointed by the first respondent, the Secretary of State for Housing, Communities and Local Government, each dismissing an appeal under section 78 of the 1990 Act against a local planning authority's refusal of planning permission for housing development. One of the challenges was to a decision dismissing an appeal against the refusal of planning permission by the second respondent, Corby Borough Council, for a development of up to 129 dwellings on land at Southfield, Gretton. The other was to a decision dismissing an appeal against the refusal of planning permission by the third respondent, Uttlesford District Council, for a development of up to 240 dwellings on land off Station Road, Flitch Green.
In both section 78 appeals the policy for the so-called “tilted balance” under paragraph 11d)ii of the NPPF applied because, in either case, the local planning authority was unable to demonstrate a five-year supply of deliverable housing sites, so that the policies most important for determining the application were deemed “out-of-date”.
The issues in the case
The case raises two main issues: first, whether a decision-maker, when applying the “tilted balance” under paragraph 11d)ii, is required not to take into account relevant policies of the development plan; and second, as a connected issue, whether it is necessary for the “tilted balance” and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 to be performed as separate and sequential steps in a two-stage approach. There is a further issue: whether the “tilted balance” under paragraph 11d)ii excludes the exercise indicated in paragraph 213 of the NPPF, which requires that policies in plans adopted before its publication should be given due weight, “according to their degree of consistency with [it]”.
The policy in paragraph 11 of the NPPF
In chapter 1, “Introduction”, paragraph 2 of the 2019 version of the NPPF acknowledges that “[planning] law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise 3”, and that “[the NPPF] must be taken into account in preparing the development plan, and is a material consideration in planning decisions”. Footnote 3 refers to section 38(6) of the 2004 Act and section 70(2) of the 1990 Act.
In chapter 2, “Achieving sustainable development”, paragraph 7 says that “[the] purpose of the planning system is to contribute to the achievement of sustainable development”. Paragraph 10 says this:
“10. So that sustainable development is pursued in a positive way, at the heart of the Framework is a presumption in favour of sustainable development (paragraph 11).”
Paragraph 11, under the heading “The presumption in favour of sustainable development”, states:
“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, 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.”
Footnote 6 states:
Footnote 7 states:
Paragraph 12 confirms that “[the] presumption in favour of sustainable development does not change the statutory status of the development plan as the starting point for decision making”.
Paragraph 14 says that “[in] situations where the presumption (at paragraph 11d) applies to applications involving the provision of housing, the adverse impact of allowing development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits, provided all of the following apply”. Four considerations are then set out, including “b) the neighbourhood plan contains policies and allocations to meet its identified housing requirement” and “c) the local planning authority has at least a three year supply of deliverable housing sites …”.
In Annex 1 to the NPPF, “Implementation”, paragraph 213 states:
“213. … [Existing] policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”
In paragraph 14 of the NPPF published in 2012 the policy for the “presumption in favour of sustainable development”, as it related to “decision-taking”, was in these terms:
“14. …
For decision-taking this means:
• 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 stated:
The Government's consultation document containing its proposals on the draft revised text of the NPPF, issued in March 2018, said the draft had “incorporated … the effect of caselaw on the interpretation of planning policy since 2012”. Introducing the revised policy for the
“presumption in favour of sustainable development” in paragraph 11, it said that “[the] current Framework includes examples of policies which provide a specific reason for restricting development”, and that this was “proposed to be changed to a defined list, which is set out at footnote 7 …”, adding that “[this] approach does not preclude other policies being used to limit development where the presumption applies, if the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits”.
The section 78 appeal decision in the Gretton case
The inspector in the Gretton appeal identified two main issues: first, “[whether] the proposed development would be appropriately located …”; and second, “[whether] the [borough council] can demonstrate a 5-year supply of deliverable housing sites” (paragraph 5 of the decision letter).
On the first main issue, under the heading “Development Plan Strategy”, the inspector found the...
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