Peel Investments (North) Ltd v Secretary of State for Housing, Communities And Local Government & Anor

For paragraph 11d of the National Planning Policy Framework, whether a policy is out-of-date is a policy-specific and substantive inquiry. The expiry of a development plan period does not automatically make its policies out-of-date. A saved environmental policy may remain effective after the plan period, even where the plan has no current strategic housing-supply policy.

The question is whether the policy has been overtaken by events, including changes on the ground or in national policy. It is a matter of planning judgment. Consistency with the Framework is relevant but not exclusive. Quantitative housing delivery and deficiencies in the type or affordability of housing are separate considerations.

The appellant sought outline planning permission for two residential developments in the Worsley Greenway, an area protected by saved policies EN2 and R4 of Salford’s Unitary Development Plan. The Council refused both applications. The Secretary of State dismissed the consolidated planning appeals after an inquiry in November 2018.

The appellant brought a claim under section 288 of the Town and Country Planning Act 1990. Dove J dismissed the claim on 2 August 2019. The appellant appealed, contending that the time-expired plan, the absence of housing-supply policies, and unmet needs for family and affordable housing made policy EN2 out-of-date under paragraph 11d of the 2018 National Planning Policy Framework.

The central issue was whether those matters automatically engaged the tilted balance in favour of planning permission.

1. Appeal dismissed. Baker LJ, with whom Sir Stephen Richards and Lewison LJ agreed, held that there was no error of law in the Planning Court’s decision or in the Secretary of State’s decision.

2. Paragraph 11d of the 2018 NPPF concerns the policies most important to the application, not whether the development plan as a whole has passed its end-date. The expiry of the plan period does not automatically render constituent policies out-of-date. The court endorsed and applied the analysis in Bloor Homes, [2014] EWHC 754 (Admin): a policy is out-of-date where it has been overtaken by subsequent events, such as a change on the ground or in national policy. If that is established, the tilted balance applies.

3. The observation in Hopkins Homes, [2017] UKSC 37, that a plan ending in 2011 was out-of-date was obiter. It did not establish that all policies in a time-expired plan are necessarily out-of-date.

4. The absence of strategic housing policies did not automatically make saved policy EN2 out-of-date. The provisions of the Planning and Compulsory Purchase Act 2004 and the NPPF concerning strategic policies govern the preparation of future plans. They do not determine whether an existing environmental policy has become out-of-date. Policy EN2 was one of many saved policies and protected an environmental asset on a timescale capable of extending beyond the plan period.

5. The Secretary of State had not treated consistency with the NPPF as the sole criterion. He adopted the inspector’s assessment of consistency, the loss of former housing policies, housing need and supply, and the policy’s continuing effectiveness. The finding that policy EN2 did not impede quantitative housing delivery was compatible with recognising deficiencies in family and affordable housing. Those qualitative deficiencies were separately treated as material considerations in the planning balance.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal from the Planning Court: [2020] EWCA Civ 1175.
• Planning Court (Administrative Court) — Dove J dismissed the appellant’s section 288 claim on 2 August 2019.
• Secretary of State — on 12 November 2018, dismissed the consolidated appeals against the Council’s refusals of planning permission, accepting the inspector’s recommendation.
• Earlier stage — the Secretary of State’s 2015 dismissal of the first planning appeal was challenged under section 288; the Secretary of State and the Council submitted to judgment, and a further inquiry was convened.