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

The Court of Appeal upheld the High Court's refusal to grant planning statutory review, dismissing challenges to two planning inspectors' decisions. The court held that paragraph 11(d)(ii) of the National Planning Policy Framework (the "tilted balance") does not require development plan policies to be excluded from the assessment of "adverse impacts" and "benefits" and that decision‑makers may take relevant development plan policies into account when performing the tilted balance. The court also rejected the contention that the tilted balance and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 must be applied as separate, sequential stages, accepting that the two may be applied together so long as the statutory primacy of the development plan is respected.

Background and procedural history. The appellant sought planning statutory review of two planning inspectors' decisions dismissing section 78 appeals against refusals of planning permission for housing at Southfield, Gretton (up to 129 dwellings) and land off Station Road, Flitch Green (up to 240 dwellings). Permission to apply for planning statutory review had been granted (Lewison L.J., 22 May 2020) and Holgate J. in the High Court refused permission ([2020] EWHC 518 (Admin)). The appellant appealed to this Court of Appeal.

Nature of the claim / relief sought. The appellant challenged the inspectors' application of paragraph 11 of the National Planning Policy Framework (NPPF), in particular paragraph 11(d)(ii) (the "tilted balance"), seeking review on the basis that the inspectors wrongly took development plan policies into account when applying the tilted balance and that the tilted balance must be performed as a separate, self-contained stage prior to the section 38(6) assessment.

Issues framed.

• whether decision-makers applying the tilted balance under paragraph 11(d)(ii) are required to exclude relevant development plan policies from that exercise;
• whether the tilted balance and the statutory duty under section 38(6) must be performed as separate sequential stages; and
• whether paragraph 213 of the NPPF (giving due weight to pre‑existing plan policies according to consistency) is excluded from the tilted balance assessment.

Court’s reasoning. The court reviewed relevant authorities (including Hopkins Homes, East Staffordshire, Hallam Land and first instance decisions such as Crane and Woodcock) and concluded that paragraph 11(d)(ii) should not be read as excluding development plan policies from the tilted balance. The drafting of footnote 6 (which excludes development plan policies in relation to paragraph 11(d)(i)) was significant; had the Government intended to exclude development plan policies from paragraph 11(d)(ii) it could have done so explicitly but did not. The court reiterated established principles: the NPPF is policy, not statute, and the interpretation of policy must be sensible and read in context. It held that decision‑makers may lawfully take development plan policies into account within the paragraph 11(d)(ii) assessment, and that the tilted balance and section 38(6) duties may be carried out together in a single holistic exercise provided statutory primacy of the plan is observed and double-counting avoided. The court also held paragraph 213 may inform the paragraph 11(d)(ii) assessment. Finally, the inspectors' decisions in the two appeals were found to be lawful and not to involve the alleged errors.

Appeal dismissed. The Court of Appeal held that paragraph 11(d)(ii) of the NPPF does not legally exclude relevant development plan policies from the tilted balance; decision-makers may take development plan policies into account when assessing whether adverse impacts significantly and demonstrably outweigh benefits. Further, the tilted balance and the section 38(6) duty need not be performed as separate sequential stages and may lawfully be applied together, provided the statutory primacy of the development plan is respected. The inspectors had not erred in law and the applications for review were dismissed.

Permission to apply for planning statutory review was granted by Lewison L.J. on 22 May 2020. The appeal to this Court of Appeal is from the High Court (Holgate J.) decision refusing permission ([2020] EWHC 518 (Admin)). The Court of Appeal dismissed the appellant's challenge ([2021] EWCA Civ 104).