Can local housing need justify the grant of planning permission even when the tilted balance is not engaged?

23rd April, 2020

Practitioners understand that the prospects of getting planning permission on an unallocated site are enhanced if paragraph 11 (“the tilted balance”) of the National Planning Policy Framework (“NPPF”) is engaged. This is done through demonstrating that the Council cannot demonstrate a five year supply of deliverable housing sites (“5YHLS”), there are no relevant policies in the development plan or that the most important policies in the development plan for determining the application are otherwise out of date. Where the tilted balance is engaged it is then necessary to demonstrate that the adverse impacts of granting planning permission do not significantly and demonstrably outweigh the benefits.

However, where the tilted balance is not engaged and there are conflicts with the development plan, those promoting schemes need to demonstrate that material considerations support the grant of planning permission and this is, as a general rule, more challenging. However, a recent Secretary of State decision offers hope that where an applicant or appellant is able to demonstrate local housing need, this could support the grant of planning permission.

The decision was made on 1st April 2020 in connection with an appeal by Gladman relating to a site in Long Melford in Babergh District (reference APP/D3505/W/18/3214377). Decisions by the Secretary of State for Housing, Communities and Local Government are always worth scrutinising because they frequently include conclusions which may be relevant to other schemes which we are involved with. This decision is no exception with planning permission being granted even though the proposal was found to be contrary to the development plan. The key points which are summarised below will be highly relevant to other schemes being promoted in Babergh and elsewhere. The key conclusions of the Secretary of State follow:

Having considered the most up to date available evidence (in the Council’s Housing Land Supply Position Statement), he concluded that contrary to the agreed position at the inquiry, the Council could now demonstrate a 5YHLS (5.67 years).
The most important policies for determining the appeal were not out of date. As a consequence of this (and the point in 1 above), the tilted balance was not engaged.
Important to the decision were the policies related to settlement hierarchy set out in the Core Strategy. Long Melford is identified as a “Core Village” in the Core Strategy with such settlements collectively anticipated to deliver an identified number of dwellings in the plan period. However, the allocations document which should have followed the Core Strategy and which was anticipated to identify adjustments to settlement boundaries to meet that need, was now highly unlikely to be produced because of the new proposed Joint Local Plan. It follows that there were no development plan policies identifying specific sites or adjustments to settlement boundaries to meet the housing need in Core Villages.
Core Strategy policies provide that development proposals should, inter alia, identify a local housing need (including for affordable housing) and exceptional circumstances for development in the countryside. Following the East Bergholt PC judgment ([2016] EWHC 3400), the Secretary of State confirmed that it was necessary to demonstrate a proven local need. On the basis of the evidence (which covered need across the entire Core Village and functional cluster) before him, the Secretary of State concluded that a demonstrable local housing and affordable housing need had been identified. He concluded that the provision of homes to meet an identified need attracted significant weight.
The appeal site was outside the settlement boundary in the Babergh Local Plan but this policy had not been formally saved. Due to this and the age of the policy, the Secretary of State concluded that the settlement boundary was out-of-date. This enabled him to conclude that the appeal proposal was in general accordance with the spatial settlement strategy and hierarchy.
The Secretary of State found that Gladman had not demonstrated exceptional circumstances as required by the Core Strategy. However, he said that this part of the policy is not consistent with the NPPF and should therefore carry reduced weight in the planning balance.
There was some identified but limited harm in terms of landscape impact which are fact specific but it is noteworthy that the Secretary of State did not find the appeal site to be a “valued landscape” in terms of paragraph 170a of the NPPF and only attached moderate weight to the policy conflicts.
The Secretary of State dealt in short fashion with a whole host of planning issues to which varying degrees of weight were attached. However, none of those issues appear to be central to the decision.
In his overall conclusions, the Secretary of State:

a. acknowledged conflicts with parts of the development plan and concluded that the proposals were not in accordance with the development plan as a whole;

b. concluded that the material considerations were such that the proposal should be determined other than in accordance with the development plan. Although a 5YHLS could be demonstrated, this was a baseline not a ceiling. Critical was the finding of local need in Long Melford in line with the expectations of the development plan. The housing delivery in the light of this local housing need (and the Government’s objective of significantly boosting housing delivery) should carry significant weight. Other material considerations carried more limited weight in the planning balance but nevertheless supported the grant of planning permission.

The decision demonstrates that material considerations can support the grant of planning permission even where a development proposal is contrary to the development plan. Critical in this case was the evidence submitted by Gladman on local housing need. Although development plan policy did support the grant of planning permission where local housing need is demonstrated, there is no reason why that principle could not be applied to other authorities which do not have a similar policy. In short local housing need is capable of supporting the grant of planning permission on unallocated sites, particularly where other harm and/or conflicts with the development plan are limited. The key is for this to be demonstrated through robust evidence.

Finally, the case is a useful reminder that the weight to be attached to development plan policies which are inconsistent with the NPPF should also be more limited. In this case, the Secretary of State concluded that the proposals were contrary to the development plan as a whole but he was still nevertheless able to attract less weight to a policy requiring exceptional circumstances to be demonstrated. That was critical because otherwise the appeal would probably have been unsuccessful as Gladman were unable to demonstrate that such exceptional circumstances existed.

For any further information, please do not hesitate to contact a member of the Planning team.

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.

Can local housing need justify the grant of planning permission even when the tilted balance is not engaged?

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