The presumption in favour of sustainable development can apply when the development plan policies which are most important for determining the application are out-of-date (per paragraph 11(d) NPPF). The recent case of Ewans v Mid Suffolk District Council  has confirmed that such ‘out-of-date’ assessment of a policy can be site specific.
The Ewans Case
The case of Ewans v Mid Suffolk District Council (CO/3569/2020), for which Hewitsons LLP acted for the Claimant, concerned the judicial review of a planning permission granted by the council for a development of 300 dwellings in Woolpit. The application site was in the countryside for which housing policies in the Local Plan restricted development. Notwithstanding the council having a 5 year land supply it determined that such housing policies, being most important for determining the application, were out-of-date. Therefore, in granting planning permission they applied the presumption in favour of sustainable development (known as the tilted balance) in accordance with Paragraph 11(d) of the National Planning Policy Framework (NPPF).
The claimant contended that the council had failed to adequately assess and give reasons as to why the housing policies were inconsistent with the relevant NPPF policies and therefore out-of-date. In particular, the council had not specifically assessed the housing policies against any policies in the NPPF. However, giving judgement, Holgate J found that there was no legal requirement to refer explicitly to paragraphs in the NPPF when carrying out the ‘out-of-date assessment’ in Paragraph 11(d).
A key fact in the reasoning of the council that the housing policies were out-of-date and too restrictive compared to the sustainable development approach of the NPPF was their proposed allocation of the site in their emerging Local Plan and specifically its supporting Infrastructure Delivery Plan’s objectively assessed housing needs (OAN) for Woolpit. The OAN illustrated an increased housing need for Woolpit compared to the housing policies in the current Local Plan. That is to say, the housing policies were too restrictive in light of the current local housing need for Woolpit.
Interestingly, Holgate J found that local planning authorities are not restricted as a matter of law to carry out the ‘out-of-date assessment’ of the relevant development plan policies in a generic ‘district-wide’ manner (such that a policy determined out-of-date will similarly be out-of-date for all proposals before it). He stated that the plain language in paragraph 11(d) plainly encompassed the ability to take into account, inter alia, the manner in which policies operate in relation to specific development proposals. Such conclusion may or may not relate to other application sites as well.
Therefore, local planning authorities could determine the same housing policy both up-to-date on one development site and at the same time out-of-date on a different development site. In this case the current OAN for Woolpit being a material site specific consideration notwithstanding the council having a 5 year land supply for the district.
The judicial review was therefore dismissed.
If you have any questions in relation to this article or are interested in a judicial review of a local council’s decision then the Planning and Environment Team at Hewitsons LLP will be happy to assist.