The NPPF and “out-of-date”

The Court of Appeal has handed down a judgment on the meaning of “out-of-date” in paragraph 11(d) in the National Planning Policy Framework. Matthew Fraser sets out the key points.

On 3 September 2020, the Court of Appeal gave judgment in Peel Investments (North) Ltd v Secretary of State for Housing, Communities & Local Government [2020] EWCA Civ 1175, and addressed the interpretation of para. 11(d) of the National Planning Policy Framework 2019 (“NPPF”).

Para. 11(d) provides that, for decision-making on applications for planning permission, “the presumption in favour of sustainable development” means that (emphasis added):

“where there are no relevant development planning policies, or the policies which are most important for determining the application are out-of-date, granting permission unless: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 proposed; 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.”

The Court of Appeal, upholding the decision of Dove J at first instance, held that there is nothing in para. 11(d) to suggest that the expiry of the specified period of a development plan document automatically renders the policies in that document “out-of-date” for the purposes of that paragraph.

Giving the lead judgment, Baker LJ held that the analysis of the meaning of “out-of-date” in the former NPPF 2012 by Lindblom J (as he then was) in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), at paras. 44 to 46, applied in the same way to the current NPPF.

Accordingly, policies are “out-of-date” for the purposes of para. 11d of the NPPF if they have been overtaken by things that have happened since the plan was adopted, either on the ground or through a change in national policy, or for some other reason.

The Court of Appeal also held that a development plan without strategic housing policies is not automatically “out-of-date” for the purposes of paragraph 11d, and it remains a question of planning judgment for the decision-maker.

At para. 68, Baker LJ said:

“… it is obvious that many policies will not expire with the plan but, rather, will survive beyond the plan period. … [A]lthough a local development document is intended to present as a coherent suite of policies, that objective is not inconsistent with the inclusion of some environmental policies being intended and designed to operate on a longer time scale than that which may be contemplated by the plan period.”

The appeal relates to the decision of the Secretary of State for Housing, Communities and Local Government to dismiss two recovered appeals by Peel Investments (North) Ltd against the refusal of planning permission by Salford City Council for the construction of 600 and 165 homes respectively on land in West Salford known as the Worsley Greenway.

The Worsley Greenway is protected by saved policies in the Council’s Unitary Development Plan, the period of which expired in 2016. The Secretary of State held that those saved policies were not “out-of-date” for the purposes of NPPF 11(d).

Matthew Fraser is a barrister at Landmark Chambers. Together with Christopher Katkowski QC, he has acted for the Second Respondent, Salford City Council, since, respectively, the first inquiry in 2014 and the second inquiry in 2018.

Rupert Warren QC, also of Landmark, acted for the Appellant, Peel Investments (North) Limited, in the Court of Appeal, instructed by Shoosmiths LLP.