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Re-tilting the balance? High Court rules on key aspect of decision making in planning matters
Shortly before the full impact of the COVID-19 pandemic hit the UK, the High Court handed down an important judgment on the interpretation of Paragraph 11 of the National Planning Policy Framework (“Framework”), also known as the “tilted balance”.
The case of Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government  EWHC 518 (Admin) answers the question of whether development plan policies may be taken into account under the tilted balance.
The core legal principle of decision making on planning applications and appeals is that decisions must be made in accordance with a local planning authority’s development plan unless material considerations indicate otherwise.
Those with potential development sites which are not allocated or which are otherwise contrary to the development plan often look to argue planning permission should be granted as a result of material considerations in favour of a scheme.
A key material consideration is the Framework. Those in the development industry will be familiar with the wording of Paragraph 11 (and its predecessor in the 2012 version of the Framework) and the relevant part of this is set out below for ease of reference, together with relevant footnotes:
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-date⁷, 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 proposed⁶; 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.
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.
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, asset out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years. Transitional arrangements for the Housing Delivery Test are set out in Annex 1.
As one can see where it is triggered paragraph 11.d)ii) looks to “tilt” the planning balance towards the grant of a planning permission by indicating that permission should be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits of doing this. Paragraph 11.d) needs to be read together with its footnotes too.
The tilted balance has proved to be a key battle ground for developers in recent years, particularly on appeal as it provides a potentially more favourable basis for decision making.
The key question that the High Court tackled in Gladman was whether a decision maker may take development plan policies into account when considering the tilted balance, in addition to policies in the Framework.
Gladman argued (amongst other things) that the reference to an assessment of “policies in this Framework taken as a whole” implied that such an assessment should only take into account policies in the Framework and not those in the development plan. They also said that this interpretation was justified to provide a solution for development plans which are not “working” or which are not delivering necessary development.
However, the High Court found that development plan policies may be taken into account in the tilted balance for the following reasons:
That a line of case law relating to the predecessor to Paragraph 11 in the 2012 version of the Framework (Paragraph 14 in that document) made it clear that the weight to be given under that paragraph was a matter of planning judgement for the decision maker and nothing in Paragraph 11.d)ii) changed that.
Footnote 6 to paragraph 11 (set out above) specifically excludes policies in development plans. However, this applies to Paragraph 11.d)i), not Paragraph 11.d)ii) and the “straightforward approach” to interpretation meant that Paragraph 11.d)ii) did not exclude development plan policies from the tilted balance.
Paragraph 14 of the Framework looks to exclude the operation of the tilted balance in certain areas with neighbourhood plans by setting out that the adverse impact of allowing development which conflicts with neighbourhood plans is likely to significantly and demonstrably outweigh the benefits where a number of criteria apply. The High Court found that this assumes by its wording that neighbourhood plans (which are part of the development plan) are relevant considerations in the tilted balance.
The Court went on to say that there is no obligation for a decision maker to make a determination under the tilted balance (where that applies) and then carry out a further separate assessment of whether the scheme complies with the development plan and relevant material considerations. The Court said a decision maker could do this or consider both matters together.
On one view, this decision could be considered as further weakening the ability of developers to use the tilted balance to secure planning permission on unallocated sites outside of defined settlement boundaries.
Recent research by Planning Magazine (subscription required) indicates that the proportion of successful appeals for major schemes on unallocated greenfield sites has generally been decreasing since 2016.
Developers may now fear that as development plan policies can be taken into account in the tilted balance, it could mean that any “adverse impacts” of conflict with development plan policies, including those relating to the quantum and spatial distribution of development, may form part of that planning judgement. Such an interpretation has the potential to be particularly detrimental to the chances of schemes on unallocated sites outside of defined settlement boundaries as they will generally be in conflict with such policies. Some such policies may also predate (in some cases by some time) the date of the Framework and may be inconsistent with it. In such circumstances it will be important to argue that the weight to be attached to such policies should be diminished because of that inconsistency.
Indeed, Planning Magazine have also reported Gladman’s statement that fewer than one in five of the 67 major housing appeals where the tilted balance was applied in the first nine months of 2019 were successful and that they have now begun to avoid the appeals system.
Moving forwards, those looking to argue the tilted balance justifies the grant of planning permission on unallocated sites outside of defined settlement boundaries will need to also make arguments as to why development plan policies should be given reduced or limited weight in the tilted balance. Those arguments could be bolstered where a development plan is not delivering (according to the Housing Delivery Test) or facilitating a deliverable five year housing land supply. However, this may now require more in depth work to evidence that such scenarios are caused by such development plan policies inhibiting the delivery and/or supply required by the Framework.
Please do not hesitate to discuss any of the Howes Percival Planning team if you would like to discuss the implications of this judgment further.
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