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04th September 2020

Court of Appeal confirms when planning policies are ‘out-of-date’ to trigger the tilted balance in the NPPF.

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The Court of Appeal has recently confirmed (i) the correct interpretation of the term “out-of-date” in paragraph 11d of the NPPF and (ii) the proper application of local policies which are time-expired or fail to deal with the strategic issue of housing supply.

Background

In Peel Investments v Secretary of State for Housing, Communities & Local Government [2020] EWCA Civ 1175 the Court of Appeal was asked to decide two issues. Firstly, the correct interpretation of the term “out-of-date” in paragraph 11d of the National Planning Policy Framework (NPPF). Secondly, the proper application of policies contained within local plans which are time-expired or fail to deal with the strategic issue of housing supply.

Paragraph 11d of the NPPF is known as the ‘tilted balance’ and provides as follows:

“11. Plans and decisions should apply a presumption in favour of sustainable development … for decision making this means … (d) 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no relevant development planning policies, or the policies which are most important for determining the application are out-of-date, granting permission unless: (i) the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason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 (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”.

Footnote 7 to paragraph 11d states inter alia the well-known position that ‘out-of-date’ relevant local planning policies includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites.

However, in what other scenarios may relevant planning policies be determined as out-of-date?

Meaning of ‘out-of-date’

The Court of Appeal importantly confirmed that whether a relevant local policy is out-of-date and, if so, with what consequences, are matters of pure planning judgement, not dependent on issues of legal interpretation. The Court continued by confirming that policies are out-of-date for such purposes if they have been: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, so that they are now out-of-date”.

However, while the decision on whether a relevant local policy is out-of-date is a planning judgement, the Court did emphasise that the expiry of the local plan period does not automatically render the policies in the plan out-of-date for the purposes of paragraph 11d. Lord Justice Baker noting it is obvious that many policies will not expire with the plan but, rather, will survive beyond the plan period.

The Court also emphasised that a local plan without strategic housing policies is also not automatically out-of-date for the purposes of paragraph 11d. Lord Justice Baker noting that although a local plan is intended to present as a coherent suite of policies, that objective is not inconsistent with the inclusion of some non-strategic housing policies, such as environmental protection policies, being intended and designed to operate on a longer timescale than the plan period.

Assistance and Advice

Should you have any questions or require any assistance on any issues mentioned in this article please do not hesitate to contact the Planning and Environment Team at Hewitsons LLP.