Paul Newman New Homes Ltd v Secretary of State for Housing Communities and Local Government & Anor

Under paragraph 11d of the 2018 National Planning Policy Framework, the first trigger for the tilted balance is unavailable where at least one development-plan policy is genuinely relevant to determining the application. The policy need not be decisive, highly important, up to date, or sufficient by itself to determine the acceptability of the proposal in principle.

For the second trigger, the decision-maker must identify the basket of policies most important for determining the application and assess whether that basket, viewed overall, is out of date. A single up-to-date policy may prevent the trigger from operating. A policy is not out of date merely because it is saved from a time-expired plan.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s decision, issued through a Planning Inspector, dismissing its appeal against the failure of Aylesbury Vale District Council to determine an outline application for 50 homes and associated facilities in the countryside.

The Inspector found that the Council had a five-year housing land supply. She treated Policy GP.35 of the saved Aylesbury Vale District Local Plan as relevant, up to date and important for determining the application. She therefore concluded that paragraph 11d of the 2018 Framework was not engaged and dismissed the appeal because the proposal harmed rural character and appearance.

The central issues were the construction of paragraph 11d and whether GP.35 applied to the principle of an outline development proposal.

The application was dismissed.

1. Paragraph 11d, first trigger. The phrase “where there are no relevant development plan policies” has a clear meaning. One or more policies with a real role in determining the application are sufficient to prevent this trigger from operating. The policy need not be decisive, highly important, up to date, or form a body of policy sufficient to determine the proposal’s acceptability in principle. General development-control policies may qualify.
2. Paragraph 11d, second trigger. The decision-maker must first identify the basket of development-plan policies most important for determining the application. The basket must then be assessed overall. The fact that one or more policies within it are out of date does not necessarily mean that the basket as a whole is out of date. A single up-to-date policy may block the trigger, because the statutory plural includes the singular.
3. A policy is not out of date merely because it is contained in a time-expired plan. The 2018 Framework had to be construed in its own language. The court declined to rewrite paragraph 11d by importing the earlier judicial exposition of “absent” and “silent” in the 2012 Framework.
4. Policy GP.35. Although aspects of the policy concerned design details suitable for a full or reserved-matters application, factors concerning the physical characteristics of the site and surroundings, natural qualities and features, and important public views and skylines could bear on whether development was acceptable in principle. The fact that an application was in outline did not make the policy irrelevant.
5. If no acceptable design could comply with GP.35, an outline permission could not safely be granted subject to reserved matters. The Inspector was entitled to conclude that the proposed development would breach GP.35, conflict with the development plan, and cause harm to rural character and appearance. The tilted balance was therefore not engaged.

The judgment was a first-instance judicial review under section 288 of the Town and Country Planning Act 1990. The court dismissed the claim and upheld the validity of the Secretary of State’s decision.