The NPPF: A Digest

Annex I: Implementation

NPPF 213

Peel Investments (North) Limited [2020] EWCA Civ 1175, Lewison and Baker LJJ, Sir Stephen Richards
Rupert Warren KC appeared as Leading Counsel for the Appellant
Matthew Fraser appeared as Junior Counsel for the Second Respondent

“65. There is nothing in paragraph 11d of the 2018 NPPF, or its predecessor paragraph 14 of the 2012 Framework, to suggest that the expiry of the period of the plan automatically renders the policies in the plan out-of-date. I agree with Sir Duncan Ouseley’s observations in Paul Newman New Homes that a policy is not out-of-date simply because it is in a time-expired plan and that, if the Framework had intended to treat as out-of-date all saved but time-expired policies, it would not have used the phrase “out-of-date” but rather the language of time-expired policies or policies in a time-expired plan. As a matter of construction of the terms of the NPPF, the appellant’s argument on ground one is unsustainable.

1. I endorse and adopt the careful and precise analysis of paragraph 14 of the 2012 NPPF carried out by Lindblom J in Bloor Homes . His analysis plainly applies to the revised terms of the presumption in favour of sustainable development in paragraph 11d of the 2018 Framework. If the policies which are most important for determining the planning application have been overtaken by things that have happened since the plan was adopted, either on the ground or through a change in national policy, or for some other reason, so that they are now out-of-date, the decision-makers must apply the tilted balance expressed in the presumption in favour of sustainable development.
2. The appellant’s case on the first ground of appeal rests almost exclusively on a single sentence in paragraph 63 of Lord Carnwath’s judgment in the Hopkins Homes case cited at paragraph 26 above. I agree with Dove J that it was an obiter remark which does not lay down any legal principle and which is quite incapable of bearing the forensic weight which the appellant seeks to ascribe to it. I do not accept the appellant’s submission that the contention that the policies in a plan which is past its expiry date are in every case out-of-date is a correct reflection either of the NPPF as a whole or of regulation 5(1)(a)(i).
3. With regard to the second ground of appeal, I do not accept the appellant’s submission that a plan without strategic housing policies is automatically out-of-date for the purposes of paragraph 11d so as to engage the tilted balance.”

“It seems to me that the key to interpreting paragraph 11d lies not in paragraph 63 of Lord Carnwath’s judgment in Hopkins Homes but, rather, in paragraph 55, where he observed that, whether a policy becomes out-of-date and, if so, with what consequences are matters of pure planning judgment, not dependent on issues of legal interpretation.” [71]

Gladman Developments Ltd [2021] EWCA Civ 104, Sir Keith Lindblom, Senior President of Tribunals, Simler LJ and Sir Gary Hickinbottom

“It follows from the analysis on the two main issues that, as Holgate J. concluded (in paragraph 117 of his judgment), the policy in paragraph 213 of the NPPF may properly be taken into account in the balancing exercise under paragraph 11d)ii, and is not, in principle, of relevance only to the weighting of development plan policies under section 38(6) (see the recent decision of this court in Peel Investments (North) Ltd. v Secretary of State for Housing, Communities and Local Government [2020] EWCA Civ 1175 , at paragraph 66). Neither the wording of the policy in paragraph 11d)ii nor that of the policy in paragraph 213 itself lends any support to the contention that the latter is excluded from the operation of the “tilted balance” under paragraph 11d)ii.” [68]