This article was first published on LexisPSL on 12 March 2021
The Court of Appeal, yet again, was asked to consider the interpretation of para. 11d) of the NPPF in a case where an Inspector dismissed an appeal for residential development in the countryside. It was also asked to interpret a policy in the Aylesbury Vale District Local Plan and whether it was “relevant” to the determination of the appeal. The High Court held that the Inspector’s interpretation was correct and the Court of Appeal upheld his judgment.
In dismissing the s.78 appeal against the Council’s failure to determine an application for outline permission to build 50 homes in the countryside the Inspector concluded that Policy GP.35 was a relevant policy to her decision and consistent with the aims of the NPPF such that it was up-to-date and should be given full weight. She found that the development would unnaturally extend the settlement and encroach into the countryside causing harm to its character and appearance. She further found that Council had a 5-year supply of housing land and that the tilted balance under para. 11d) did not apply. She concluded that the benefits did not outweigh the harm and dismissed the appeal. The High Court held that the Inspector had correctly found Policy GP.35 to be relevant to a decision on an outline planning application and was entitled to conclude that the development was contrary to the development plan. He further held that the Inspector’s approach to what were the most important development plan policies for determining the application was correct. On appeal, the Court of Appeal had to consider (1) whether Policy GP.35 was intended to guide decision-making at the outline application stage; and (2) whether the Judge had erred in construing para. 11d) of the NPPF.
On the first issue the Court applied the decision in Canterbury City Council v Secretary of State [2019] EWCA Civ 669 and held that if the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 is to be performed properly, the decision-maker must identify and properly understand the relevant policies. Further, that the language of para. 11d) of the NPPF requires a judgment by the decision-maker as to whether a policy was relevant to the determination of the application and its importance. Noting that the distinction between the interpretation of a particular policy and its application may sometimes be fine, the Court held that the Inspector had explained clearly why Policy GP.35 was relevant. It rejected the appellant’s submission that Policy GP.35 could not be relevant at the outline application stage. Notwithstanding that Policy GB.35 had elements which were more relevant to the reserved matters stage, there were aspects of the policy that were fundamental to the principle of the development; and that there is no hard and fast line between what is acceptable in principle and what the impact of a particular development may be.
On the second issue, the Court held that it was unhelpful to consider the language of the earlier 2012 NPPF and its reference to “absent” and “silent” and the earlier cases construing it as the NPPF 2018 (which as regards para 11d) was not materially different to the 2019 version) replaced the 2012 version and used different language. It said that the first “trigger” for the application of the tilted balance was where there were no relevant development plan policies which was wide enough to embrace where was no development plan at all, or where the plan pre-dated the Planning and Compulsory Purchase Act 2004 and none of the relevant policies had been saved. Agreeing with the Judge, the Court of Appeal held that “relevance” means that the policy has a real role to play in the determination of the application but need not be determinative of the application. As to the second “trigger” (i.e. where the policies which are most important for determining the application are out-of-date), this involved an evaluation by the decision maker of which of the relevant policies in the local plan were the most important and whether they accorded with current national policy. The fact that one of the policies amongst the most important may be out-of-date did not mean that the tilted balance automatically applied.
The decision is the matter of some debate as to its correctness and in particular the relationship between paras. 11c) and d).
This Case Report was produced by John Litton QC.
