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Land promoter loses High Court challenge over application of 'tilted balance'

Land promoter Gladman has lost two High Court challenges to planning inspectors’ decisions on the ‘tilted balance’ in the National Planning Policy Framework (NPPF).

The company brought its case over planning disputes with Corby and Uttlesford councils.

In Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government & Anor [2020] EWHC 518 (Admin) Mr Justice Holgate said that the cases turned on whether the NPPF requires - as Gladman argued - the ‘tilted balance’ to be struck without taking into account policies of the development plan concerned, leaving those matters to be weighed separately under s.38(6) of the Planning and Compulsory Purchase Act 2004.

The Secretary of State for Housing, Communities and Local Government and the two councils said this was not the case as relevant development plan policies, whether favourable, unfavourable or neutral towards the development proposed may be taken into account.

Holgate J dismissed Gladman's argument, in which he found “a number of flaws”:

  1. Paragraph 11(d)(ii), which contains the tilted balance, did not itself provide a solution for the problem with which Gladman was concerned, namely a shortfall or a lack of land to meet identified development needs. The judge said: "It does not automatically lead to the grant of planning permission… [it] involves the balancing of competing interests, but with a tilt towards granting permission. That exercise may or may not result in planning permission being granted. But there is nothing about the nature of that policy or the assessment it requires which would justify the exclusion of development plan policies from the tilted balance.”
  2. If development plan policies were to be disregarded, this would also mean that policies that favoured development would be ignored in decisions.
  3. It was not sensible to divorce considerations which are relevant under the tilted balance from related development plan policies. "The very need for market housing and affordable housing upon which a developer relies in support of his proposal is likely to gain strength from development plan policies which validate that need. Absent these policies, it would be necessary for evidence to be produced on need without reference to the development plan when the subject is already covered adequately by that plan (together with any updating from the monitoring of the plan's policies). The same would apply for various forms of employment development, the need for which may be supported by specific policies in the development plan."
  4. The claimant's focus on the trigger in footnote 7 of NPPF 2019 overlooked the established principle that the trigger only deems certain policies to be out-of-date. "Whether they are in fact out-of-date and, if so, in what respects, and how much weight should be attached to those policies remains to be assessed. Such policies are not simply left out of account because of this deeming provision as the claimant's case sometimes appeared to be on the verge of suggesting. It is sensible for the decision-maker to be able to take those policies into account in the tilted balance and make an assessment of the weight to be given to them at the same time."
  5. The claimant's approach would mean that factors are taken into account in striking the tilted balance without any development plan policies related thereto, leaving those policies to be applied and weighed in a separate exercise under s.38(6). "But that would require the decision-maker to consider topics addressed by development plan policies twice; once (without those policies) in the tilted balance and then again (with those policies) under s.38(6). This would require an elaborate form of decision-making which the NPPF does not call for."
  6. On the claimant's two-stage approach, the second stage applying s.38(6) would only be necessary in practice if the outcome of the tilted balance supported the grant of permission. This decision-making framework was "objectionable because it would enable some applicants to satisfy the test in paragraph 11(d)(ii) (and gain the benefit of the presumption in favour of sustainable development) without any assessment being made of the weight to be given to relevant development plan policies, even where those policies justifiably attract substantial or full weight".

Mr Justice Holgate said he accepted the Secretary of State's submissions that there was no legal justification for the court to prescribe that the tilted balance in paragraph 11(d)(ii) of the NPPF and the presumption in s.38(6) must be applied in two separate stages in sequence.

"There is nothing in the wording or effect of either provision which would justify the court acting in that way," he said.

The judge said Gladman's challenge relating to the interpretation of paragraph 11(d)(ii) of NPPF 2019 must be rejected. "The NPPF does not exclude development plan policies from the tilted balance; they are relevant considerations."

He also noted that neither the NPPF nor planning policy in general “should be subjected to ‘excessive legalism’ in legal challenges brought by any party disappointed by the outcome of a planning application or planning appeal.

Mark Smulian

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