Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government & Anor

Paragraph 11(d)(ii) of the National Planning Policy Framework 2019 does not require relevant development plan policies to be excluded from the tilted balance. The decision-maker may assess their weight, including where they are treated as out-of-date because of an inadequate housing land supply.

The tilted balance and the statutory presumption in section 38(6) of the Planning and Compulsory Purchase Act 2004 need not be applied in two separate stages. They may be applied together or separately, provided the statutory primacy of the development plan is respected. The weight given to policies, benefits, harms and the presumption remains a matter of planning judgment. Planning Inspectors are not generally required to express the value and effect of each benefit in a prescribed form.

Gladman challenged two Inspector decisions dismissing appeals against refusals of planning permission for housing schemes at Gretton and Flitch Green. In both cases the local planning authority could not demonstrate a five-year supply of deliverable housing sites, engaging paragraph 11(d)(ii) of the National Planning Policy Framework 2019.

The central issue was whether the Inspectors acted unlawfully by taking development plan policies into account in the tilted balance, and by considering their consistency with the Framework. Further grounds alleged inadequate reasons concerning the benefits of the schemes, housing needs and the non-uniqueness of certain benefits.

1. Applications refused. Permission to apply for statutory review in both claims was refused. The challenges to the two appeal decisions therefore failed.
2. Paragraph 11(d)(ii) must be interpreted within the development-plan-led system established by section 38(6) of the Planning and Compulsory Purchase Act 2004. The wording of paragraph 11(d)(ii), including its reference to policies in the Framework taken as a whole, does not exclude relevant development plan policies from the tilted balance. Footnote 6 excludes development plan policies only from paragraphs 11(b)(i) and 11(d)(i), not paragraph 11(d)(ii) (paras [81]-[92]).
3. Where paragraph 11(d)(ii) is triggered, the decision-maker must still assess the weight to be given to relevant development plan policies. That includes considering whether they are substantively out-of-date, why that is so, the extent and cause of any housing shortfall, and the prospects of reducing it. The Framework does not prescribe the weight to be given (paras [94]-[103]).
4. The tilted balance and section 38(6) do not have to be applied in two sequential stages. The decision-maker may assemble all relevant material and apply the balances together or separately. There is no legal error from assessing the same factors against different tests, nor does the approach produce impermissible double-counting or circularity (paras [104]-[112]).
5. The consistency of development plan policies with the Framework may be considered when assessing their weight. The challenge to the use of paragraph 213 of the Framework added nothing to the unsuccessful argument on paragraph 11(d)(ii) (paras [116]-[117]).
6. The Inspectors gave legally adequate reasons. There is no universal requirement to express separately the value and effect of each benefit. Nor was the Gretton Inspector required to refer in greater detail to housing needs and strategic objectives which were understood by the parties and addressed in substance (paras [118]-[122]).
7. The Gretton Inspector was entitled to consider whether the socio-economic benefits were unique to the proposal. In any event, the reference to their non-uniqueness did not materially affect his conclusion that they carried moderate weight (paras [123]-[126]).
8. Evidence seeking to analyse other decision letters was essentially irrelevant to the objective question of whether the decisions under challenge correctly interpreted the Framework. Parties should generally confine evidence to material before the original decision-maker, subject to the limited exceptions recognised in the authorities (paras [66]-[70]).

The Claimant was ordered to pay the First Defendant’s costs in both claims and Uttlesford District Council’s costs of its acknowledgment of service. A second set of costs for the hearing was refused.

First-instance statutory review challenges to two Planning Inspector decisions. Permission to apply for statutory review was refused in both claims.