NPPF litigation - where are we now?
NPPF 2012 generated a huge amount of litigation, despite repeated insistence from judges at all levels that "excessive legalism" in the planning system is to be avoided. NPPF 2018/2019 has incorporated and codified much of the caselaw that had built up. In other areas, however, the new wording has thrown up further issues requiring decision by the courts and new factual situations also continue to arise. This article briefly summarises the effect of some key decisions on the new (2018/19 NPPF).
One of the main changes to the NPPF was in the wording of the trigger for the application of the 'tilted balance'. The new wording refers to a situation where "policies most important for determining the application" are out of date. This has let to controversy as between two extreme positions. Does the policy trigger the application of the tilted balance when any of the most important policies are out of date, or when all of them are? The court in Wavendon Properties v SSHCLG [2019] EWHC 1524 (Admin) has struck a nuanced middle line between these extremes:
"[58]… It needs to be remembered, in accordance with the principles of interpretation set out above, that this is a policy designed to shape and direct the exercise of planning judgment. It is neither a rule nor a tick box instruction. The language does not warrant the conclusion that it requires every one of the most important policies to be up-to-date before the tilted balance is not to be engaged. In my view the plain words of the policy clearly require that having established which are the policies most important for determining the application, and having examined each of them in relation to the question of whether or not they are out of date applying the current Framework and the approach set out in the Bloor case, an overall judgment must be formed as to whether or not taken as a whole these policies are to regarded as out-of- date for the purpose of the decision."
Another major trigger for the application of the tilted balance is of course where a 5YHLS does not exist (or, now, where the housing delivery test threshold is not passed). The position as to requirement is, in theory, less subject to debate than previously (although there may be room for some litigation around what will qualify as 'exceptional circumstances' for departing from the standard method in a plan-making context). There is also a greater degree of clarity (particularly following NPPF2019) as to when sites will be considered 'deliverable'. And in the decision taking context at least the 'Sedgefield' method has been given clear priority over the 'Liverpool' method when it comes to dealing with previous undersupply of housing.
An interesting factual situation that has come up relates to previous supply above requirement. The success of NPPF2012 in securing the grant of further permissions means that many authorities wanting to apply policies of restraint can point to delivery over and above the plan figure in past years. Policy is apparently silent on how this should be dealt with. There are apparently cogent arguments in both directions. On the one hand, it is strange to penalise authorities who have delivered well by ignoring their record in the earlier part of the plan period and potentially applying the tilted balance as a consequence. On the other hand, policy is supposed to set a minimum threshold for delivery so delivery above the minimum in one year does not necessarily mean that delivery should be allowed to fall below the minimum in future years.
The court in Tewkesbury BC v SSCHLG [2019] EWHC 1775 (Admin) has not resolved these arguments; the specific facts under consideration meant that the proceedings were effective academic. However, it is interesting that the Secretary of State took the view that it would be a question of planning judgement as to how historic 'over' delivery should be assessed. On the face of it, therefore, this question will have to be resolved on a case by case basis where it arises.
Settlement boundary policies have been a key area of litigation; this looks set to continue. They formed the subject matter of Wavendon, and often present the point of difference between planning authorities and developers as to issues of 'out of date'. Even if there is not sufficient 'out of date-ness' to trigger the application of the tilted balance, it may be appropriate to reduce the weight to settlement boundaries if they are 'out of date' to some extent. The basis on which it is permissible to do this remains a frequent subject of dispute in the light of NPPF para 213.
Experience so far seems to suggest that the flow of NPPF litigation will continue. Despite the courts' deprecation of excessive legalism, and the fact that questions of interpretation often will not make a difference to the outcome, there is often too much at stake for parties not to litigate points of interpretation where they arise.
Cain Ormondroyd is a barrister at Francis Taylor Building specialising in planning law. He frequently appears at planning inquiries relating to housing development.