Court of Appeal case provides guidance on application of NPPF paragraph 11(d)

We look at the tilted balance, the facts of Paul Newman New Homes Ltd v MHCLG [2021] EWCA Civ 15 and highlight key practical points arising from the case

09 February 2021

In the recent case of Paul Newman New Homes Ltd v MHCLG & Aylesbury Vale District Council [2021] EWCA Civ 15, the Court of Appeal confirmed that an Inspector’s approach to applying paragraph 11(d) of the NPPF was lawful, and provided some helpful guidance on when the tilted balance can be applied. The decision also confirmed how a design-related policy could be relevant to the determination of an outline planning application.

What is the tilted balance?

The question before the Court was whether a Planning Inspector and a High Court Judge had correctly interpreted paragraph 11(d) of the 2018 NPPF when dismissing a developer’s appeals against the non-determination by Aylesbury Vale District Council of an outline application for 50 homes in the countryside.

Paragraph 11 of the NPPF 2018, which is substantially the same as the current 2019 version, sets out the all-important “presumption in favour of sustainable development” also known as ‘the titled balance’. It provides that:

for decision-taking, this means:

d) where there are no relevant development plan policies, or the policies which are most important for determining the applications are out-of-date [FN 7] granting permission unless:

ii) 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

iii) 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 addresses circumstances where the local planning authority (LPA) cannot demonstrate a five-year housing supply. In this case, the LPA did have a five year housing land supply so footnote 7 was not relevant.

What were the facts of the case?

In the appeal, the Inspector decided that the presumption in favour of the development did not apply and concluded that the benefits of the proposal did not outweigh the specific harms identified, namely the detrimental effect of the proposed development on the character and appearance of the local area contrary to the saved 2004 Aylesbury Vale District Local Plan policy GP.35. 

Policy GP.35 relates to the design and landscaping of new development and reads as follows:

The design of new development proposals should respect and complement:

a) the physical characteristics of the site and surroundings;

b) the building tradition, ordering, form and materials of the locality;

c) the historic scale and context of the setting;

d) the natural qualities and features of the area; and

e) the effect on important public views and skylines.

A statutory challenge was then brought and the High Court considered that the Inspector was correct in her approach to identifying the relevant development plan policies for determining the application.

The developer appealed against the High Court decision on two grounds:

  • Firstly, that Policy GP.35 was not a relevant development plan policy because it was not intended to guide decision-making at the outline application stage; and
  • Secondly, even if Policy GP.35 was a relevant and up-to-date development plan policy, it was the only one and therefore the developer should benefit from the tilted balance (absent the operation of either of the exceptions in 11(d)).

The Court of Appeal considered these points in turn and dismissed both grounds. 

Can a design policy apply to applications for outline planning permission?

The developer’s argument was that Policy GP.35 could not be relevant at the outline application stage, as it was only concerned with issues of detail that should arise at the reserved matters stage. In the majority judgment, Lady Justice Andrews disagreed.

Andrews LJ noted that, once an outline permission has been granted, the principle of development on the site is accepted. Once accepted, “[i]t would not be open to the local planning authority, for example, to take the position at the reserved matters stage that no development on that site could ever blend in with the character and setting of the local environment”. It is therefore appropriate and useful to have a policy that would enable the decision-maker to address these issues at the outline stage.

Whether a specific design policy will be relevant to an outline decision will be a matter of interpretation. In this case, the Court of Appeal ruled that the Inspector was entitled to conclude that Policy GP.35 was relevant to the fundamental question of whether a satisfactory development could be achieved in principle.

Interpretation of paragraph 11(d) of the 2018 NPPF

The developer argued that, even if the Local Plan did contain a relevant policy that was not out-of-date (i.e. GP.35), paragraph 11(d) specifically refers to “policies” in the plural. It was suggested that the phrase “no relevant development plan policies” meant that there was no basket of policies sufficient for determination of the application.

In making this argument, the developer referred to the wording of the 2012 version of the NPPF. The 2012 version, which was replaced by the 2018 NPPF, introduced the concept of the tilted balance. In paragraph 14 it set out the presumption in favour of sustainable development, which would apply to decisions “where the development plan is absent, silent or relevant policies are out-of-date” (emphasis added) unless exceptions applied. The developer sought to rely on various cases in which the meaning of the words absent and silent in this policy were considered. This was on the basis that there was no policy intention to make any radical change to the tests leading to the application of the ‘tilted balance’ when the 2018 NPPF was introduced. To accept the Inspector’s interpretation of paragraph 11(d), it was argued, would constitute a radical and unintended change from the principles set out in the 2012 NPPF.

Andrews LJ took a dim view of this approach, noting that she “[did] not find it particularly helpful to consider the language of the 2012 NPPF or how that was construed in earlier cases”.

The Court applied a common-sense interpretation of the language used within paragraph 11(d) and confirmed that the plural “policies” embraces the singular. Andrews LJ explained that it would be wrong to conclude that the tilted balance must apply in circumstances where a crucial policy was up-to-date and self-contained just because it was the sole survivor in the local plan.

The decision also confirmed that the concept of “relevance” means that the policy or policies must have a real role to play in the determination of the application. There is no requirement that it or they should be enough in themselves to enable the decision maker to grant or refuse that application, i.e. being the sole reason.

What are the key practical points from this decision?

This case is a helpful reminder of the following points:

  • Current NPPF policies should be interpreted based on their own wording, without reference to previous iterations;
  • The natural interpretation of the language in paragraph 11(d) is that a single relevant local plan policy that is in accordance with national policy (i.e. not out of date) can prevent the tilted balance from applying;
  • Policies dealing with issues of detailed design can still be relevant to the determination of outline permissions where they relate to the question of whether a satisfactory development could be achieved in principle; and
  • This case is also an important reminder of the Court’s reluctance to determine the meaning of planning policy other than in accordance with the language used read in its proper context.

For any questions regarding this case or the application of the titled balance, please do not hesitate to contact Gary Soloman, Sarah Sutherland or Anna Coyle.

Key contact

Gary Soloman

Gary Soloman Partner

  • Head of Planning and Compulsory Purchase
  • Regeneration and Highways
  • Compulsory Purchase and Compensation

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