Thu, 12 Mar 2020
Introduction
These cases concerned challenges by Gladman 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”).
The principal question for the Court was:
“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?”
The Court’s answer was a resounding ‘no’.
A reminder of the relevant wording of paragraph 11
“11. …decisions should apply a presumption in favour of sustainable development. …
For decision-taking this means:
… d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date7, granting permission unless:
- the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed6; or
- 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 (see the reference in paragraph 11 d) i. above) provides:
“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.”
Summary
The court accepted that the exclusion by Footnote 6 of policies in development plans in respect of the application of paragraph 11 d) i. was clearly intended to reverse the observations of Lords Carnwath and Gill on the equivalent provision to paragraph 11 in the 2012 NPPF in Hopkins Homes Limited v Secretary of State for Housing Communities and Local Government [2017] 1 WLR 1865 (paras 14 and 85).
Given, however, that footnote 6 refers to paragraph 11 d) i. alone, not to 11 d) ii., the decision of the Court that policies in development plans are not excluded from the application of paragraph 11 d) ii. seems hardly surprising!
