Court of Appeal rejects challenge to application of ‘tilted balance’ by two councils

The Court of Appeal has rejected a developer’s case that two councils misapplied the ‘tilted balance’ in the National Planning Policy Framework (NPPF).

Gladman Developments brought the case against the Secretary of State for Housing, Communities and Local Government, whose inspectors rejected two appeals made by the company against decisions by Corby Borough Council and Uttlesford District Council to turn down residential planning applications.

In Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government [2021] EWCA Civ 104 Senior President of Tribunals Sir Keith Lindblom, with whom Lady Justice Simler and Sir Gary Hickinbottom agreed, found that neither of Gladman’s arguments had any merit and that neither inspector erred in law.

Gladman had applied to build 129 dwellings on land at Gretton, in Corby, and to build 240 homes at Flitch Green, Uttlesford.

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Sir Keith said: “At the heart of this case is a question of policy interpretation. Such questions have become familiar work for the Planning Court, and this court too, since the publication of the National Planning Policy Framework in March 2012.

“This case concerns the policy for the ‘presumption in favour of sustainable development’ in paragraph 11 of the revised versions of the NPPF published in July 2018 and February 2019.”

Gladman appealed against the order of Holgate J refusing permission to apply for a planning statutory review of the inspectors’ decisions.

Both inspectors had upheld rejection of the applications despite neither council having the required five-year supply of deliverable housing sites.

This would mean that local development policies could be deemed out of date in deciding on the applications and so the ‘tilted balance’ would favour the provision of more homes.

Sir Keith said two main issues arose, whether a decision-maker, when applying this 'tilted balance’ was required not to take into account relevant policies of the development plan; and whether it was necessary for the ‘tilted balance’ and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 to be performed as separate and sequential steps in a two-stage approach.

Section 38(6) states that if a development plan is used as part of the determination of an application tis must be made in accordance with the plan unless material considerations indicate otherwise.

Gladman argued both inspectors had erred by taking into account policies in the development plans in the absence of a five-year land supply and the proposals' conflict with those policies.

It said that when applying the 'tilted balance’ the decision-maker has to assess the proposal against the relevant policies of the NPPF and local plan policies do not come into that exercise.

Sir Keith said: “I cannot accept that argument…it is implicit in previous discussion of this question – not only in the Planning Court but also in this court and in the Supreme Court – that decision-makers are not legally bound to disregard policies of the development plan when applying the ‘tilted balance’.”

He also rejected the idea that the ‘tilted balance’ and section 38(6) must be performed separately, noting “no support for it is to be found in statute or in authority. Indeed, it seems contrary to authority.”

This approached recognised the realism, in many cases, of a holistic approach to the section 38(6) duty and “there is no prescribed method to adopt”, Sir Keith said.

“So long as the statutory duty is complied with, the decision-maker can go about the task in a way that seems suitable in the particular circumstances of the case.

“To split the performance of the duty, in every case, into two distinct stages or steps would be unduly inflexible. If, in substance, it can be properly discharged in a single, comprehensive exercise…that will not be unlawful.”

Mark Smulian

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