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

The tilted balance in paragraph 11d)ii of the National Planning Policy Framework does not require relevant development plan policies to be disregarded. Those policies may inform the assessment of a proposal’s adverse impacts and benefits. Whether and how they are taken into account, and the weight they receive, are matters of planning judgment.

The tilted balance and the statutory duty to determine an application in accordance with the development plan unless material considerations indicate otherwise need not be performed as separate, sequential exercises. They may lawfully be applied together, provided the decision-maker respects the development plan’s statutory primacy and considers all material considerations. Paragraph 213 of the Framework may also be considered within the tilted balance.

Planning inspectors dismissed two appeals against refusals of permission for housing developments at Gretton and Flitch Green. In both appeals, the local authority lacked a five-year supply of deliverable housing sites, engaging the tilted balance in paragraph 11d)ii of the National Planning Policy Framework. Each inspector nevertheless considered relevant development plan policies and concluded that the adverse impacts significantly and demonstrably outweighed the benefits.

Holgate J refused permission to seek planning statutory review in [2020] EWHC 518 (Admin). The developer appealed. The central issues were whether development plan policies must be excluded from the tilted balance, whether that balance and section 38(6) of the Planning and Compulsory Purchase Act 2004 must be applied through separate sequential stages, and whether paragraph 213 of the Framework could operate within the tilted balance.

1. The appeal and applications for planning statutory review were dismissed. Neither inspector had misinterpreted or unlawfully applied paragraph 11 of the National Planning Policy Framework. Holgate J had correctly upheld both decisions.

2. Paragraph 11d)ii does not exclude relevant development plan policies from the tilted balance. The Framework is policy rather than statute and operates within the statutory plan-led system. Its reference to assessment against the policies in the Framework taken as a whole does not imply that development plan policies must be left aside. Footnote 6 expressly excludes development plan policies only for paragraphs 11b)i and 11d)i. Its omission from paragraph 11d)ii was significant.

3. Development plan policies will often inform a proper assessment of adverse impacts and benefits. They may help measure compliance with Framework policies, identify effects on a plan-led strategy, or affect the weight attributable to an impact. Whether and how such policies are considered, and the weight assigned to them, remain matters of planning judgment. This interpretation accorded with Hopkins Homes Ltd, East Staffordshire Borough Council, Hallam Land Management Ltd, Crane and Woodcock Holdings Ltd.

4. The tilted balance and the duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 need not be performed as separate and sequential stages. A decision-maker may conduct them separately or combine them in one comprehensive assessment. A combined approach is lawful if it preserves the statutory primacy of the development plan, considers other material considerations and applies both presumptions according to their distinct status. It can also avoid double-counting matters relevant to both exercises.

5. Paragraph 213 of the Framework may properly be used within the paragraph 11d)ii balance when assessing the weight of existing development plan policies according to their consistency with the Framework. It is not confined to the separate performance of the section 38(6) duty.

Simler LJ and Sir Gary Hickinbottom agreed with the Senior President of Tribunals.

1. Court of Appeal (Civil Division): In [2021] EWCA Civ 104, dismissed the appeal and the applications for planning statutory review, holding that both inspectors had acted lawfully.

2. High Court, Planning Court: Holgate J, in [2020] EWHC 518 (Admin), refused permission to apply for planning statutory review of the inspectors’ decisions.

3. Planning inspectors: Dismissed the statutory planning appeals concerning proposed housing developments at Gretton and Flitch Green.