Paul Newman New Homes Ltd v Secretary of State for Housing, Communities And Local Government

Under paragraph 11(d) of the National Planning Policy Framework, the absence-of-policy trigger for the tilted balance applies only where no development plan policy has a real role in determining the application. A relevant policy need not be determinative or sufficient by itself.

The second trigger requires the decision-maker to identify the most important policies, examine whether each is out of date and assess their status overall. A single relevant and up-to-date policy may prevent either trigger from operating. Whether a policy is relevant or important is generally a matter of planning judgment, but its interpretation is a matter of law.

A developer applied for outline permission to construct 50 homes and associated facilities on countryside land. The local planning authority did not determine the application, and the developer appealed. The Planning Inspector found that saved policy GP.35 of the local plan applied at the outline stage, was up to date and was breached by the proposal. She also found that the authority had a five-year housing land supply. She therefore declined to apply the tilted balance and dismissed the planning appeal under section 38(6) of the Planning and Compulsory Purchase Act 2004.

Sir Duncan Ouseley, sitting in the Planning Court, upheld that decision. The developer appealed, contending that GP.35 concerned only reserved matters and that paragraph 11(d) of the National Planning Policy Framework applied where the local plan lacked a sufficient body of policies to determine the acceptability of the development in principle.

1. Appeal dismissed. Andrews LJ, with whom Coulson and Peter Jackson LJJ agreed, held that policy GP.35 applied to applications for outline planning permission. Although some of its elements were more relevant to reserved matters, its provisions concerning physical characteristics, natural qualities, public views and skylines could determine whether satisfactory development was possible in principle. Once outline permission was granted, a decision-maker could not revisit at the reserved-matters stage a matter of principle which should have been resolved earlier.

2. The ordinary meaning of a planning policy must be read in its full context, including its objectives, related policies and supporting text. Interpretation is a matter of law, although relevance and application are matters of planning judgment. GP.35 gave policy weight to matters affecting rural character and appearance; it was not merely a list of considerations that would have been material in any event.

3. The first trigger in paragraph 11(d) of the National Planning Policy Framework applies where no development plan policy is relevant to the decision whether permission should be granted. A policy is relevant when it has a real role in determining the application. It need not be determinative or sufficient, alone or with other policies, to resolve the acceptability of the development in principle. General development-control policies may qualify, and relevance is distinct from the policy’s relative importance.

4. The second trigger requires the decision-maker to identify the policies most important for determining the application, examine whether each is out of date and then assess their status overall. A policy does not become out of date merely because it forms part of a time-expired plan. The plural word “policies” embraces the singular, so one relevant, important and up-to-date policy may prevent the tilted balance from applying.

5. The Inspector was entitled to find GP.35 relevant, important and up to date. As the authority had demonstrated a five-year housing land supply, the housing-supply provision in footnote 7 was not engaged. The Inspector therefore correctly carried out the ordinary planning balance under section 38(6) of the Planning and Compulsory Purchase Act 2004.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2021] EWCA Civ 15. The court upheld the interpretation of policy GP.35 and paragraph 11(d) adopted below.

2. High Court, Planning Court: Sir Duncan Ouseley upheld the Planning Inspector’s decision. No citation for that judgment is stated.

3. Planning Inspector: The developer’s planning appeal was dismissed. The Inspector found that GP.35 was relevant, important and up to date, that the authority had a five-year housing land supply, and that the ordinary section 38(6) balance applied.