“directing development to the most appropriate locations; encouraging new development, infrastructure and facilities where they are required; and protecting key environmental assets.”
“the policies and proposals of the UDP are designed to secure the implementation of the vision and priorities set out in the Spatial Framework.”
“an adequate supply of housing will be secured through the … achievement of an average annual rate of housing provision, net of clearance, of 530 dwellings per year during the period up to 2016.”
“Development will not be permitted where it would fragment or detract from the openness and continuity of the Greenway, or would cause unacceptable harm to its character or its value as an amenity, wildlife, agricultural or open recreation resource.” 8. The supporting text stated: “The Worsley Greenway is a strategically important ‘green wedge’ within the Worsley area …. The protection and enhancement of Worsley Greenway, in its entirety, is therefore of great strategic and local importance.”
“the proposal will be contrary to the provision of saved policy EN2 of the SUDP in that the development would fragment the openness and continuity of the Greenway.”
“the proposal will be contrary to the provision of saved Policy EN2 of the SUDP in that the development would fragment the openness and continuity of the Worsley Greenway and would result in unacceptable harm to its character and its value as an amenity and open recreation resource. The proposal would be contrary to saved policy R4 of the SUDP in that the development would not result in the protection and enhancement of the existing and potential recreational use of the area, or the protection and improvement of the amenity of the area.”
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
“(1B) Each local planning authority must identify the strategic priorities for the development and use of land in the authority’s area. (1C) Policies to address those priorities must be set out in the local planning authority’s development plan documents (taken as a whole).”
“any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities which contain statements regarding … (i) the development and use of land which the local planning authority wish to encourage during any specified period….”
“The purpose of the planning system is to contribute to the achievement of sustainable development. At a very high level, the objective of sustainable development can be summarised as meeting the needs of the present without compromising the ability of future generations to meet their own needs.”
“Plans and decisions should apply a presumption in favour of sustainable development. For plan-making this means that (a) plans should positively seek opportunities to meet the development needs of the area, and be sufficiently flexible to adapt to rapid change; (b) strategic policies should, as a minimum, provide for objectively assessed needs for housing and other uses, as well as any needs that cannot be met within neighbouring areas, unless (i) the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area, or (ii) any adverse impact of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole. For plan-making this means that (i) the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for restricting the overall scale, type or distribution of development in the plan area, or (ii) any adverse impact of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole. For decision-making this means (c). approving development proposals that accord with an up-to-date development plan without delay; or (d). where there are no relevant development planning policies, or the policies which are most important for determining the application are out-of-date, granting permission unless: (i) the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.” 23. A footnote, numbered 7, inserted after the word “out-of-date” in paragraph 11d provides inter alia: “This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites ….” 24. Section 3 of the Framework headed “Plan-making”, includes, at paragraph 17: “The development plan must include strategic policies to address each local planning authority’s priorities for the development and use of land in its area.”
“Strategic policies should set out an overall strategy for the pattern, scale and quality of development and make sufficient provision for (a) housing (including affordable housing), employment, retail, leisure and other commercial development; (b) infrastructure …. (c) community facilities …. and (d) conservation and enhancement of the natural, built and historic environment ….”
“The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.”
“212. The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication. Plans may also need to be revised to reflect policy changes which this replacement Framework has made. This should be progressed as quickly as possible, either through a partial revision or by preparing a new plan. 213. However, existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”
“where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or specific policies in this Framework indicate development should be restricted.”
“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.” any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or specific policies in this Framework indicate development should be restricted.”
“44. In the context of decision-taking paragraph 14 identifies three possible shortcomings in the development plan, any one of which would require the authority to grant planning permission unless it is clear in the light of the policies of the NPPF that the benefits of doing so would be "significantly and demonstrably" outweighed by "any adverse impacts", or there are specific policies in the NPPF indicating that "development should be restricted". The three possible shortcomings are the absence of the plan, its silence, and its relevant policies having become out-of-date. 45. These are three distinct concepts. A development plan will be "absent" if none has been adopted for the relevant area and the relevant period. If there is such a plan, it may be "silent" because it lacks policy relevant to the project under consideration. And if the plan does have relevant policies these may have been overtaken by things that have happened since it was adopted, either on the ground or in some change in national policy, or for some other reason, so that they are now "out-of-date". Absence will be a matter of fact. Silence will be either a matter of fact or a matter of construction, or both. And the question of whether relevant policies are no longer up to date will be either a matter of fact or perhaps a matter of both fact and judgment. 46. All of this, one has to remember, sits within the statutory framework for the making of decisions on applications for planning permission, in which those decisions must be made in accordance with the development plan unless material considerations indicate otherwise. Government policy in the NPPF does not, and could not, modify that statutory framework, but operates within it – as paragraph 12 of the NPPF acknowledges. The Government has taken the opportunity in the NPPF to confirm its commitment to a system of development control decision-making that is "genuinely plan-led" (paragraph 17). But in any event, within the statutory framework, the status of policy in the NPPF, including the policy for decision-making in paragraph 14, is that of a material consideration outside the development plan. It is for the decision-maker to decide what weight should be given to the policy in paragraph 14 if it applies to the case in hand. Because it is government policy it is likely to command significant weight when it has to be taken into account. But the court will not intervene unless the weight given to it can be said to be unreasonable in the Wednesbury sense …”
“54. The general effect is reasonably clear. In the absence of relevant or up-todate development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are ‘significantly and demonstrably’ outweighed by the adverse effects or where ‘specific policies’ indicate otherwise. (See also the helpful discussion by Lindblom J in Bloor Homes ….). 55. It has to be borne in mind also that paragraph 14 is not concerned solely with housing policy. It needs to work for other forms of development covered by the development plan, for example employment or transport. Thus, for example, there may be a relevant policy for the supply of employment land, but it may become out-of-date, perhaps because of the arrival of a major new source of employment in the area. Whether that is so, and with what consequence, is a matter of planning judgment, unrelated of course to paragraph 49 which deals only with housing supply. This may in turn have an effect on other related policies, for example for transport. The pressure for new land may mean in turn that other competing policies will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgment, not dependent on issues of legal interpretation.”
“On any view, quite apart from paragraph 49, the current statutory development plan was out-of-date, in that its period extended only to 2011.”
“Since old policies of the kind illustrated by policies HS22 and HS24 in this case are part of the development plan, the starting point, for the purposes of decisionmaking, remains section 38(6) of the 2004 Act. This requires the decisions must be made in accordance with the development plan – and therefore, in accordance with those policies and any others contained in the plan – unless material considerations indicate otherwise. The mere age of a policy does not cause it to cease to be part of the development plan …. The fact that a particular development plan policy may be chronologically old is, in itself, irrelevant for the purposes of assessing its consistency with policies in the NPPF….”
“In my judgment, the key part of the second trigger, the phrase ‘where the policies which are most important for determining the application are out-ofdate’, is reasonably clear. A policy is not out-of-date simply because it is in a time-expired plan …. If the 2018 Framework had intended to treat as out-of-date all saved but time-expired policies, it would not have used the phrase ‘out-ofdate’, which has different or wider connotations, and would have used instead the language of time-expired policies or policies in a time-expired plan. The inspector’s comment in [the decision letter] is apposite in that context. Although the earlier jurisprudence in Bloor Homes … and Hopkins Homes … related to that same phrase in the 2012 Framework, I see no reason to discount it here where its role is not materially different.”
“366. The appellant argues that the development plan is out-of-date for a number of reasons, specifically Policy EN 2. The SUDP was adopted in 2006 with a plan period expiring in 2016. It can certainly be said that it was produced in a different policy context and in light of different evidence and circumstances to those existing today. However, this does not necessarily mean that the plan or any individual policy should be considered out-ofdate as it may very well continue to be effective in delivering its original objectives and those relevant today. The fact that a policy is saved means that it remains part of the development plan and must be applied unless material considerations indicate otherwise. The question is not one of time but consistency with the Framework and, ultimately, results on the ground. 367. Policy EN 2 protects the Greenway for reasons that have already been identified. There is no reason to think that those reasons are any less relevant or important than they were within the plan period. Paragraph 157 of the Framework positively promotes that Local Plans should, amongst other things, identify land where development would be inappropriate, for instance because of its environmental or historic significance. That is exactly what Policy EN 2 seeks to do and there is nothing inconsistent with the Framework in that approach, even if the development plan does not currently fulfil all other requirements of the Framework. Whilst the first part of the policy seeks to prevent development in absolute terms this is unsurprising given its objective to protect openness and continuity and it does not alter the need to undertake a statutory balancing exercise against material considerations. 368. It was argued that the Greenway was only protected because the land was not needed to meet the housing requirement for the area at the time and that there was a greater emphasis on the use of, and availability of, brownfield land at that time. There is simply no evidence to support this proposition. To the contrary, the policy and reasoned justification are quite clear about the reasons for protection and these are not diminished by a greater need for housing. 369. The fact that part of the Greenway might be allocated for development in the emerging SLP is of little relevance given the size and peripheral location of the Lumber Lane site. Furthermore, the emerging SLP is yet to be tested at Examination, is subject to objections and might yet change. The document itself states that its policies currently attract very limited weight. In any case, there is nothing to suggest that the appeal sites might be allocated. The draft SLP in fact anticipates increased protection of the area. These are squarely matters for the Local Plan Examination. Any potential release of the Greenway envisaged as part of the Core Strategy is similarly of little relevance given that the CS was withdrawn many years ago. In addition, the fact that there is a recognised need to release greenfield land and/or Green Belt to meet future housing needs in the draft SLP and GMSF demonstrates an emerging strategy to deal with the issue. For the same reasons I have set out above, such recognition attracts little weight in the context of these proposals. 370. For all of these reasons I do not consider that Policy EN 2 is in any way out-of-date. It is an adopted development plan policy which has statutory force. I have found it to be consistent with the Framework and I attach the identified fundamental conflict with the policy full and substantial weight. 371. It is common ground that the development plan no longer contains any policies relating to the need for or distribution of housing in the area. At the previous inquiry, the Council accepted that these policies were out-of-date and this position of common ground between the parties was adopted by the Inspector and the SoS. The Council now argues, having reconsidered its position, that this cannot be so as the policies are not saved; they do not exist and therefore cannot be out-of-date. DT accepted in xx that the policies for the need and distribution of housing could not be out-of-date because they simply do not exist in the development plan. 372. In this case the development plan contains no policies for the need for and distribution of housing and the Council is not seeking to apply any such policies. Policy EN 2 relates specifically to the appeal sites in question and is unambiguous in restricting development of the type proposed. In these circumstances, it cannot be said that the development plan is absent, silent or relevant policies are out-of-date. Having regard to the cases of Bloor and Barker Mill Estates v SSCLG[2017] PTSR 408 , there remains a plan in place and so it is not absent; there remains a policy for the land in question which is sufficient to establish that the developments are unacceptable in principle and so the plan is not silent; and given the forgoing, the fact that there are no policies for the need and distribution of housing bears little on the outcome where the development plan is continuing to deliver an appropriate quantity of housing, the relevant policies for these appeals are not out-of-date.”
“373. There is clearly a higher housing need now than there was at the time the SUDP was adopted. Nevertheless, the Council can demonstrate a sufficient supply of housing to meet the latest need over the coming years. It is common ground that the Council can demonstrate a numerical five year housing land supply ….”
“414. Although there is compliance with most development plan policies in these cases, there is a clear and fundamental conflict with the development plan in respect of Policies EN 2 and R 4, policies which I do not consider to be out-of-date or inconsistent with the Framework. In these circumstances, the tilted balance of Framework paragraph 14 does not apply. I attach substantial weight to the harm that arises from conflict with these policies, which are fundamental to the plan taken as a whole. 415. There would be some benefits from the proposals, including a contribution towards meeting recognised needs for different types of housing, specifically larger family and affordable housing, though the contribution to the identified need would be relatively small. There would also be some benefit from the provision of school land, a marina, certain open space typologies, net gains in biodiversity, economic benefits, improved accessibility/sustainable transport provision, highway improvements and flood risk reduction. However, even cumulatively, the benefits or other material considerations to which I have been referred would not outweigh the harm that I have found or indicate a decision other than in accordance with the development plan.”
“417. If the Secretary of State disagrees with my conclusion that the tilted balance is not engaged for whatever reason, I nevertheless recommend that the appeals be dismissed and planning permission be refused in both cases. This is because the adverse impacts of the developments would be such as to significantly and demonstrably outweigh the benefits.”
“15. The Secretary of State has gone on to consider whether policy EN 2 of the SUDP is out-of-date. For the reasons given at IR366-367, the Secretary of State agrees that the policy remains part of the development plan, and is not inconsistent with the Framework. For the reasons given by the Inspector at IR368-369, he concludes that the recognition of the need to release greenfield land and/or Green Belt to meet future housing needs attracts little weight in the context of these proposals. 16. For the reasons given at IR371-372, the Secretary of State agrees that even in the absence of policies for the need and distribution of housing, there remains a plan in place, and a policy for the land in question which is sufficient to establish that the developments are unacceptable in principle, and so the plan is in line the paragraph 11(d) of the Framework. He concludes, in agreement with the Inspector at IR370, that Policy EN 2 is not out-of-date.”
“… the notion of a policy being out-of-date is one which exists within the structure of the Framework and which exists for particular purposes, namely the question of whether or not the tilted balance should apply and the weight which should be attached to the policy in the decision-taking process. In my judgment it is critical to note that there is nothing in the relevant provisions of the Framework to suggest that the expiration of a plan period requires that its policies should be treated as out-of-date. Indeed, to the contrary, the provisions of paragraph 213 specifically contemplate that older policies which are consistent with the Framework should be afforded continuing weight. Furthermore, I would entirely accept and adopt the formulation of the approach to the question of whether a policy is out-of-date given by Lindblom J in Bloor Homes. It will be a question of fact or in some cases fact and judgment. The expiration of the end date of the plan may be relevant to that exercise but it is not dispositive of it, nor did Lindblom J suggest that was the case. In so far as reliance is placed by the Claimant on the observation of Lord Carnwath in paragraph 63 of Hopkins Homes, I accept the submissions made by the First and Second Defendants that it is an obiter remark which does not lay down any legal principle, or provide a gloss on Lindblom J's approach. It is important to note that Lord Carnwath had endorsed Lindblom J's views at an earlier part of the judgment and it would be inconsistent with that endorsement to read the sentence in paragraph 63 as a further gloss on Lindblom J's conclusions. In short, this sentence from the judgment is quite incapable of bearing the forensic weight which the Claimant seeks to ascribe to it. Lord Carnwath was not identifying a legal principle that when a plan's end date has been passed its policies are out-of-date in the terms of the policy of the Framework.” “… the notion of a policy being out-of-date is one which exists within the structure of the Framework and which exists for particular purposes, namely the question of whether or not the tilted balance should apply and the weight which should be attached to the policy in the decision-taking process. In my judgment it is critical to note that there is nothing in the relevant provisions of the Framework to suggest that the expiration of a plan period requires that its policies should be treated as out-of-date. Indeed, to the contrary, the provisions of paragraph 213 specifically contemplate that older policies which are consistent with the Framework should be afforded continuing weight. Furthermore, I would entirely accept and adopt the formulation of the approach to the question of whether a policy is out-of-date given by Lindblom J in Bloor Homes. It will be a question of fact or in some cases fact and judgment. The expiration of the end date of the plan may be relevant to that exercise but it is not dispositive of it, nor did Lindblom J suggest that was the case. In so far as reliance is placed by the Claimant on the observation of Lord Carnwath in paragraph 63 of Hopkins Homes, I accept the submissions made by the First and Second Defendants that it is an obiter remark which does not lay down any legal principle, or provide a gloss on Lindblom J's approach. It is important to note that Lord Carnwath had endorsed Lindblom J's views at an earlier part of the judgment and it would be inconsistent with that endorsement to read the sentence in paragraph 63 as a further gloss on Lindblom J's conclusions. In short, this sentence from the judgment is quite incapable of bearing the forensic weight which the Claimant seeks to ascribe to it. Lord Carnwath was not identifying a legal principle that when a plan's end date has been passed its policies are out-of-date in the terms of the policy of the Framework.”
“in my view the observation of the Inspector and the question of whether or not the policy was "not one of time but consistency with the Framework" was one which was a fair reflection of the requirements both of paragraph 213 of the Framework and Lindblom J in Bloor Homes. As the Inspector observes in the preceding sentences, a policy may continue to be effective in delivering its original objectives and, moreover, may have been saved as the present policy was, and thus remain part of the development plan to be applied in accordance with the statutory Framework. Thus, the exercise required by paragraph 213 of the Framework and the Bloor Homes test is not one which is dictated simply by the passage of time, but rather an assessment of consistency of the Framework, and the factual circumstances in which the policy is being applied including, amongst other things, what the Inspector characterised as "results on the ground". In the particular circumstances of this case that was, as he reflected in paragraph 372 of the report, whether or not an appropriate quantity of housing was continuing to be delivered through the application of the remaining elements of the development plan which had not been saved. He concluded that in the light of the findings in relation to the five year supply of deliverable housing that it was.”
“the difficulty with the Claimant's submission in relation to ground 3 is that it seeks to take what the First Defendant said in paragraph 15 of the decision letter in isolation. This paragraph needs to be read along with the whole of the decision letter including, in particular, paragraph 16. Both paragraphs 15 and 16 crossrefer to the relevant paragraphs in the Inspector's report. In my view it is clear from those paragraphs to which the First Defendant cross-refers that the appropriate interpretation of the Framework in relation to whether or not a policy is out-of-date has been applied. The assessment of the Inspector, adopted and acknowledged by the First Defendant, addressed both the issue of consistency with the Framework (and therefore the policy's continuing validity as a proper reflection of national planning policy) but also whether or not, as the Claimant contended, the policy had been overtaken by the demise of the policies relating to the need and distribution of housing and the current evidence in relation to housing need and supply. Both the Inspector's conclusions and paragraphs 15 and 16 of the decision letter deal directly with the question of whether or not the policy is consistent with the Framework and also whether it has been overtaken by events, and in particular the absence of policies for the need and distribution of housing and the current position in relation to the evidence of housing need and supply.”
“in the absence of relevant or up-to-date development plan policies, the balance is tilted in favour of the grant of permission.”