“6. We recognise that a large proportion of the housing site allocated in the plan already have either full or outline planning permission. As a result it is very likely that the majority of them will be implemented. However, if these sites appear in the plan as allocations they have a formal planning status of significance if the existing permission are not implemented. Consequently, notwithstanding the existing permissions, these sites need to be robustly justified in their own right against possible alternative sites and form part of a robust spatial strategy. 7. Furthermore, we understand that across the two districts, around 90% of the housing requirement figure detailed in policy SP01 is already provided for by existing completions, sites under construction, sites with full or outline planning permission, sites with a resolution to grant planning permission subject to s106 agreement, allocations in made Neighbourhood Plans and the, reasonable, allowance for 1,000 windfall dwellings. This unusual situation means that demonstrating a supply of developable housing land for the vast majority of the plan’s overall housing requirement figure is, for some years to come, unlikely to be dependent on the allocation of the housing sites included in the submitted plan. 8. Whilst we cannot reach final conclusions on the other aspects and policies of the plan at this stage (pending consultation on Main Modification and further SA/HRA work), we anticipate that, subject to the Main Modifications discussed at the hearing sessions, it is likely that we will be able to find them sound. 9. On this basis and subject to detailed discussion and consultation and necessary alteration to the Council’s Local Development Schemes, we currently consider that the most appropriate way forward would be to: - Delete policies SP04, LP09, LP30 and the LS01 and LA housing allocation policies; -Retain the settlement boundaries in the current (as opposed to proposed) policies map; -Significantly modify policies SP03 and LP01 to make clear where new housing development will be permitted; … 10. In essence the plan would be a “Part 1” local plan, to be followed by the preparation and adoption of a “Part 2” local plan as soon as possible. The “Part 2” plan (and associated policies map alterations) would be likely to include: - An up-to-date, robust settlement hierarchy; - A spatial distribution for any housing allocations included insofar as are necessary to provide flexibility and ensure that the plan period housing requirement can be met; - Consequent housing requirement figures for Neighbourhood Plan areas; -Up-to-date and robustly justified settlement boundaries reflecting commitments and allocations; … 11. In essence the preparation of the Part 2 plan would involve the same work detailed in paragraph 2 above, but could be undertaken, outside the constraints and difficulties of a “live” local plan examination, and with the benefit of an up to date plan in place setting out a housing requirement figure and development management policies. …” - Delete policies SP04, LP09, LP30 and the LS01 and LA housing allocation policies; -Retain the settlement boundaries in the current (as opposed to proposed) policies map; -Significantly modify policies SP03 and LP01 to make clear where new housing development will be permitted; … - An up-to-date, robust settlement hierarchy; - A spatial distribution for any housing allocations included insofar as are necessary to provide flexibility and ensure that the plan period housing requirement can be met; - Consequent housing requirement figures for Neighbourhood Plan areas; -Up-to-date and robustly justified settlement boundaries reflecting commitments and allocations; … …”
‘The proposed development located, as it would be, outside the defined settlement boundary for Thurston and within the countryside, is contrary to Mid Suffolk’s Core Strategy policies CS1 and CS2 and Local Plan policy H7. The application would not comply with the development plan as a whole. In applying the tilted balance, and recognising the primacy of the development plan, the harm in allowing a significant number of further dwellings to be released in the absence of any real and demonstrable district or local need, contrary to the development plan, significantly and demonstrably outweighs the benefits.’
“6. The appeal raises the following issue: - Whether or not the location of the proposed development is acceptable having regard to adopted national and local policies and those emerging in the Joint Local Plan.”
“7. In January 2020 a resolution was agreed that outline permission be granted for 210 dwellings on a site of Beyton Road, Thurston (the Bloor Homes site). A successful challenge lodged by the Parish Council in the High Court against the Council’s decision was subsequently overturned by the Court of Appeal in October 2022; the permission was retained. 8. In September 2020 the Council resolved to grant planning permission, for what has now become the appeal scheme, subject to the completion of a S106. Given the similarities between the appeal scheme and the Bloor Homes scheme i.e. they both lie on the outside edge of the settlement boundary of Thurston, the Council stayed further work on the S106 until the outcome of the challenge had been resolved. The S106 was completed in November 2021. 9. In March 2021 the Council submitted the draft EJLP to the Secretary of State. The draft plan included Thurston as a focus for housing development and allocated the appeal site for approximately 200 houses (reference LA089). 10. Hearing sessions into the emerging local plan were suspended owing to the Examining Inspectors (ExI) concerns over the strategy and the housing allocations. The ExI in noting that around 90% of the total housing requirement figure was included in existing completions, sites under construction and sites with full or outline permission, advised the Council that a review was required of both the settlement hierarchy and the proposed housing allocations. 11. The Council, substantially revised the EJLP, with a draft Part 1 now focused on the joint vision, strategy and development management policies. There is no programme for the Part 2 plan which would address the settlement hierarchy, the boundaries and site allocations. The appeal site was removed as a housing allocation as part of the Main Modifications. 12. Following the lodging of this appeal over the non-determination of the application the Council at its meeting of6 March 2023 , resolved that it would have refused permission due to the location of the site beyond the settlement boundary in conflict with Policies CS1, CS2 of the Core Strategy and Policy H7 of the Mid Suffolk Local Plan. 13. Since 2020, the Council’s housing land supply position increased from 5.4 to 10.88 (May 2023) years supply.”
“16. Both parties agree that there is 10.88 year housing land supply and that the site lies outside the settlement boundaries contrary to the most important policies included in the Development Plan which includes Policies CS1, CS2 and H7.”
“17. Together these three policies aim to direct development to towns and key service centres such as Thurston. Outside these centres whilst Policy CS1 requires that local housing needs could be located in primary and secondary villages, Policy CS2 aims to protect the countryside for its own sake with development restricted to specific types of development which do not include major housing development. Policy H7 seeks the protection of the existing character and appearance of the countryside requiring strict control over new housing. 18. I find that together these three policies service to focus development within the settlement boundaries of the main settlements based on the adopted hierarchy identified in the Core Strategy. 19. On the advice of the Neighbourhood Plan Examiner the TNP now includes the Thurston 5 within its settlement boundary. However this boundary does not include both the appeal site and the Bloor Homes site. 20. The Court of Appeal’s judgment in the Bloor Homes case, clarified the interpretation of the policies of the TNP with their application. This identified that the Council’s decision to grant permission for that scheme did not conflict with the TNP. This is a matter of common ground between the two main parties and I find that the same circumstances apply in this instance. Whilst I recognise that there is a tension between the policies of the TNP and the appeal site’s location beyond the settlement boundary this does not amount to a policy conflict. 21. I conclude therefore that the proposed scheme conflicts with Policy H7 of the Local Plan and Policies CS1 and CS2 of the Core Strategy.”
“23. The appeal scheme includes 135 market and 75 affordable homes. 24. The ExI identified that the two Councils (Babergh and Mid Suffolk) have around 90% of their total housing requirement included in sites benefiting from full or outline planning permission, resolution to grant permission, allocations in Neighbourhood Plans and windfall allowances. 25. The Council’s own housing figures which are not disputed by the appellant, identify that it has a total committed supply of around 7,882 dwellings. When account is taken of completions for the period 2018-2021 and anticipated windfalls the total identifiable supply at April 2022 was 10,185 amounting to 100% of its local housing need for the plan period. Delivery of affordable housing in the period 2018-2022 has been in excess of need by around 127 units. 26. This picture is reflected in the figures for Thurston where the total number of homes expected to be delivered in the period 2022 to 2027 is around 707 out of a total of around 881 for the whole of the plan period. Within these figures, 291 will be affordable homes. 27. I accept that these figures would be in excess of the numbers of households in the housing register and particularly high when considered for those households which have a local connection to Thurston. 28. However, the District still experiences chronic levels of housing need as demonstrated by the increasing ‘median affordability ratios’ which are higher for the District than that of the County and the East of England. Furthermore, the District still has unacceptably high waiting times for family sized dwellings. 29. The Government’s objective of significantly boosting the supply of new homes expressed in paragraph 60 of the National Planning Policy Framework (the Framework) remains a priority. Whilst the weight which I attach to the delivery of market and affordable housing is tempered by the Council’s delivery record and HLS, I still accord the market and affordable housing included in this scheme limited and moderate weight respectively.”
“47. I accord the benefits derived from the inclusion of affordable housing, highways and economic benefits moderate weight. Market housing, ecology and open space would have limited weight.”
“58.Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that planning decisions are made in accordance with the development plan unless material considerations indicate otherwise. 59. Both parties acknowledge that the most important policies are out of date. This is a matter which I consider in detail later in this decision. In these circumstances, the Framework advises that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits. 60. However, the fact that policies have to be considered as out of date does not mean that they carry no weight. To carry weight policies must be consistent with the Framework, as explained in paragraph 219 which amongst, other things, explains that the closer that policies in the plan are to policies in the Framework, the greater weight that may be given to them. As such it is perfectly possible for policies which are deemed out of date to still carry significant weight.”
“64. For these reasons, despite the Council’s HLS position, I accord the appeal scheme’s conflict with these three policies, the most important ones for the decision, only limited weight.”
“Emerging Joint Local Plan 65. The Council states that the appeal scheme would be contrary to the draft policies of the EJLP. 66. The Council’s revised EJLP (Part 1 only) broadly reflects the advice of the ExI in substantially revising the draft plan into two parts. Hearings into the Main Modifications for the Part 1 plan were closed in the week before the Inquiry opened. Although at an advanced stage of preparation significant changes were made to its policies from those submitted to the Secretary of State and the outcome of the Hearings is unknown. 67. The draft Part 1 policies seek the retention of the existing settlement boundaries. Consequently, the bulk of extant permissions which would achieve the EJLP’s housing requirement lie on sites beyond them. Part 2 is embryonic with matters such as the settlement strategy, hierarchy and boundaries still to be determined. 68. For these reasons, I accord the EJLP very limited weight.”
“Material Considerations 69. Set against the limited weight I accord to the conflict between the appeal scheme and the most important policies, it would include affordable housing, highway works and economic benefits which I accord moderate weight with limited weight for market housing, public open space and ecology. 70. Whilst the level of local housing need is not acute as in the Melford Case there is still a need for affordable housing across the S[trategic]H[ousing]M[arket]A[rea] which the appeal scheme would contribute to. In this case, the S106 includes obligations requiring affordable housing to be directed to the provision of family housing. This is an area of recognised need within the district. 71. I acknowledge the force of the Council’s argument regarding the need for public confidence in a plan led system but find that in this instance the most important policies do not hold when balanced against the material considerations. 72. I recognise that my findings in this respect do not reflect recent decisions of my Inspector colleagues. However, whilst I do not have the full details of these cases before me, they were either for smaller numbers of units which did not for example include affordable housing or, if for larger schemes involved consideration of a broader suite of policies where other considerations prevailed. 73. The appeal scheme lies in a location which allows access to services through a choice of transport modes and would not result in landscape harm.”
“4. The development plan includes, the Mid Suffolk Local Plan 1998 (MSLP), with Alterations 2006, the Mid Suffolk Core Strategy (CS) 2008 and the Core Strategy Focused Review (CSFR) 2021 and the Thurston Neighbourhood Plan (TNP) 2019. 5. Hearings into the Main Modifications of the emerging Joint Local Plan (EJLP) with Babergh District Council have recently been completed. Although the policies of the EJLP are not cited in the Council’s putative reason for refusal, references were made to both its evidence base and its draft policies during the inquiry.” 53. Principles applicable to the application of s.38(6) of the 2004 Act were summarised by Lindblom LJ in Secretary of State for Communities and Local Government v BDW Trading Ltd (t/a David Wilson Homes (Central, Mercia and West Midlands))[2017] PTSR 1337 , and then again in Gladman Developments Ltd v SSHCLG[2021] PTSR 1450 at [21]-[23] as follows: “21. First, the section 38(6) duty is a duty to make a decision (or "determination") by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan (see Lord Clyde's speech in City of Edinburgh Council, at p.1458D to p.1459A, and p.1459D-G). Secondly, therefore, the decision-maker must understand the relevant provisions of the plan, recognizing that they may sometimes pull in different directions (see Lord Clyde's speech in City of Edinburgh Council, at p.1459D-F, the judgments of Lord Reed and Lord Hope in Tesco Stores Ltd. v Dundee City Council[2012] UKSC 13 , respectively at paragraphs 19 and 34, and the judgment of Sullivan J., as he then was, in R. v Rochdale Metropolitan Borough Council, ex p. Milne [2001] JPL 470, at paragraphs 48 to 50). Thirdly, section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty. It does not specify, for all cases, a two-stage exercise, in which, first, the decision-maker decides "whether the development plan should or should not be accorded its statutory priority", and secondly, "if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration" (see Lord Clyde's speech in City of Edinburgh Council, at p.1459H to p.1460D). Fourthly, however, the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole (see the judgment of Richards L.J. in R. (on the application of Hampton Bishop Parish Council) v Herefordshire Council[2014] EWCA 878 , at paragraph 28, and the judgment of Patterson J. in Tiviot Way Investments Ltd. v Secretary of State for Communities and Local Government [2015] EHWC 2489 (Admin), at paragraphs 27 to 36). And fifthly, the duty under section 38(6) is not displaced or modified by government policy in the NPPF. Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, its relevance to a planning decision is as one of the other material considerations to be weighed in the balance (see the judgment of Richards L.J. in Hampton Bishop Parish Council, at paragraph 30). 22. The authorities contain several passages relevant to the issue here. The first is in Lord Clyde's speech in City of Edinburgh Council (at p.1459H to p.1460C): "… [In] my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. … In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate." 23. On the same theme Richards L.J. said in his judgment in Hampton Bishop Parish Council (at paragraph 28): "… It is up to the decision-maker how precisely to go about the task, but if he is to act within his powers and in particular to comply with the statutory duty to make the determination in accordance with the development plan unless material considerations indicate otherwise, he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan. … ." Richards L.J. added (in paragraph 33) that if the decision-maker does not do that he will not be in a position to give the development plan what Lord Clyde described in City of Edinburgh Council as its "statutory priority". He went on (in the same paragraph) to recall Lord Reed's observation in Tesco v Dundee City Council (at paragraph 22) that "it is necessary to understand the nature and extent of the departure from the plan … in order to consider on a proper basis whether such a departure is justified by other material considerations". "… [In] my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. … In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate." "… It is up to the decision-maker how precisely to go about the task, but if he is to act within his powers and in particular to comply with the statutory duty to make the determination in accordance with the development plan unless material considerations indicate otherwise, he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan. … ." Richards L.J. added (in paragraph 33) that if the decision-maker does not do that he will not be in a position to give the development plan what Lord Clyde described in City of Edinburgh Council as its "statutory priority". He went on (in the same paragraph) to recall Lord Reed's observation in Tesco v Dundee City Council (at paragraph 22) that "it is necessary to understand the nature and extent of the departure from the plan … in order to consider on a proper basis whether such a departure is justified by other material considerations". 54. Other material considerations in this context include national policy as expressed in the NPPF. In Barwood Strategic Land II LLP v East Staffordshire Borough Council & Anor[2018] PTSR 88 Lindblom LJ considered relevant policy in the NPPF, including what is often referred to as the “tilted balance” (in paragraph 14 of the NPPF as it stood at that time, but now paragraph 11 in the NPPF version before this Inspector) as follows: “22. Under the Government's policy in the NPPF, a local planning authority's failure to "demonstrate a five-year supply of deliverable housing sites" when a decision is being made on an application for planning permission, or on a subsequent appeal, is not a failure without consequence. That is well illustrated by the recent decision of the Supreme Court, dismissing the appeals of the two local planning authorities (Suffolk Coastal District Council and Cheshire East Borough Council) in Suffolk Coastal District Council. In summary, there are five basic points to be taken from that decision: (1) The "primary purpose" of the policy in paragraph 49 of the NPPF is "simply to act as a trigger to the operation of the "tilted balance" under paragraph 14" (see paragraph 54 of Lord Carnwath's judgment in the Supreme Court; and paragraphs 42 to 48 of the Court of Appeal's). (2) In a case where "housing policies" are not up-to-date under paragraph 49, "it is not necessary to label other policies as "out-of-date" merely in order to determine the weight to be given to them under paragraph 14". As the Court of Appeal recognized, "that will remain a matter of planning judgement for the decision-maker". The weight to be given to "[restrictive] policies in the development plan (specific or not)" in such a case "will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the "tilted balance"" (paragraph 56 of Lord Carnwath's judgment). The operation of the "tilted balance" involves the two specific exceptions relevant to a case in which "the development plan is absent, silent or relevant policies are out-of-date". As the Secretary of State has expressly acknowledged and emphasized in this appeal, the second of those two exceptions does not "shut out" the "presumption in favour of sustainable development" simply because any of the "specific policies" – of which examples are given in footnote 9 – is in play (see paragraph 45 of my judgment in Watermead Parish Council v Crematoria Management Ltd[2017] EWCA Civ 152 ). Once identified, the specific policy in question has to be applied – and, where that specific policy requires it, planning judgment exercised – before the decision-maker can ascertain whether the "presumption in favour of sustainable development" is available to the proposal in hand (see paragraphs 14, 55, 56 and 59 of Lord Carnwath's judgment, and paragraphs 79 and 85 of Lord Gill's; and paragraphs 26 to 30, 35, 45 and 46 of the Court of Appeal's). (3) The contest between the different interpretations of the policy in the second sentence of paragraph 49 – to which Lord Gill referred (in paragraph 81 of his judgment) as a "doctrinal controversy", by contrast with what he called the "real issue" (paragraph 82) – was not decisive of the outcome in either appeal (see paragraphs 62 to 68 of Lord Carnwath's judgment, and paragraph 86 of Lord Gill's). The Supreme Court favoured the "narrow" interpretation of the policy – in preference to the "wider" understanding maintained by the Government in submissions made on behalf of the Secretary of State, and adopted by the Court of Appeal. But, as Lord Carnwath emphasized (in paragraph 59 of his judgment): "… The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14. As the Court of Appeal recognised [in paragraph 45 of its judgment], it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed." (4) The Court of Appeal was "therefore right to look for an approach which shifted the emphasis to the exercise of planning judgement under paragraph 14" (see paragraph 60 of Lord Carnwath's judgment, and paragraphs 80 to 85 of Lord Gill's). To achieve that, it is not necessary to treat restrictive policies – such as policies for the Green Belt or for an Area of Outstanding Natural Beauty – as "notionally "out-of-date"" – nor, of course, would one describe such policies in that way "merely because" the housing policies of the plan "fail to meet the NPPF objectives". Any relevant restrictive policy – Lord Carnwath's example was "a recently approved Green Belt policy" – is to be "brought back into paragraph 14 as a specific policy under footnote 9", and "the weight to be given to it alongside other material considerations, within the balance set by paragraph 14, remains a matter for the decision-maker in accordance with ordinary principles" (see paragraphs 60 and 61 of Lord Carnwath's judgment, paragraphs 29, 30, 39 and 45 to 48 of the Court of Appeal's). (5) As Lord Gill observed, the "message to planning authorities [in paragraph 47 of the NPPF] is unmistakeable" (paragraph 77 of his judgment). The "obvious constraints on housing development" include, he said, "development plan policies for the preservation of the greenbelt, and environmental and amenity policies and designations such as those referred to in footnote 9 of paragraph 14", and the "rigid enforcement of such policies may prevent a planning authority from meeting its requirement to meet a five-years supply" (paragraph 79). If an authority "in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated". In those circumstances, said Lord Gill, it is "reasonable for the guidance [in paragraph 49] to suggest that … the development plan policies for the supply of housing, however recent they may be, should not be considered as being up to date" (paragraph 83). In such cases, "the focus shifts to other material considerations", and "the wider view of the development plan policies has to be taken" (paragraph 84). And the decision-maker "should … be disposed to grant the application unless the presumption [in favour of sustainable development] can be displaced" (paragraph 85). (1) The "primary purpose" of the policy in paragraph 49 of the NPPF is "simply to act as a trigger to the operation of the "tilted balance" under paragraph 14" (see paragraph 54 of Lord Carnwath's judgment in the Supreme Court; and paragraphs 42 to 48 of the Court of Appeal's). (2) In a case where "housing policies" are not up-to-date under paragraph 49, "it is not necessary to label other policies as "out-of-date" merely in order to determine the weight to be given to them under paragraph 14". As the Court of Appeal recognized, "that will remain a matter of planning judgement for the decision-maker". The weight to be given to "[restrictive] policies in the development plan (specific or not)" in such a case "will need to be judged against the needs for development of different kinds (and housing in particular), subject where applicable to the "tilted balance"" (paragraph 56 of Lord Carnwath's judgment). The operation of the "tilted balance" involves the two specific exceptions relevant to a case in which "the development plan is absent, silent or relevant policies are out-of-date". As the Secretary of State has expressly acknowledged and emphasized in this appeal, the second of those two exceptions does not "shut out" the "presumption in favour of sustainable development" simply because any of the "specific policies" – of which examples are given in footnote 9 – is in play (see paragraph 45 of my judgment in Watermead Parish Council v Crematoria Management Ltd[2017] EWCA Civ 152 ). Once identified, the specific policy in question has to be applied – and, where that specific policy requires it, planning judgment exercised – before the decision-maker can ascertain whether the "presumption in favour of sustainable development" is available to the proposal in hand (see paragraphs 14, 55, 56 and 59 of Lord Carnwath's judgment, and paragraphs 79 and 85 of Lord Gill's; and paragraphs 26 to 30, 35, 45 and 46 of the Court of Appeal's). (3) The contest between the different interpretations of the policy in the second sentence of paragraph 49 – to which Lord Gill referred (in paragraph 81 of his judgment) as a "doctrinal controversy", by contrast with what he called the "real issue" (paragraph 82) – was not decisive of the outcome in either appeal (see paragraphs 62 to 68 of Lord Carnwath's judgment, and paragraph 86 of Lord Gill's). The Supreme Court favoured the "narrow" interpretation of the policy – in preference to the "wider" understanding maintained by the Government in submissions made on behalf of the Secretary of State, and adopted by the Court of Appeal. But, as Lord Carnwath emphasized (in paragraph 59 of his judgment): "… The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14. As the Court of Appeal recognised [in paragraph 45 of its judgment], it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed." (4) The Court of Appeal was "therefore right to look for an approach which shifted the emphasis to the exercise of planning judgement under paragraph 14" (see paragraph 60 of Lord Carnwath's judgment, and paragraphs 80 to 85 of Lord Gill's). To achieve that, it is not necessary to treat restrictive policies – such as policies for the Green Belt or for an Area of Outstanding Natural Beauty – as "notionally "out-of-date"" – nor, of course, would one describe such policies in that way "merely because" the housing policies of the plan "fail to meet the NPPF objectives". Any relevant restrictive policy – Lord Carnwath's example was "a recently approved Green Belt policy" – is to be "brought back into paragraph 14 as a specific policy under footnote 9", and "the weight to be given to it alongside other material considerations, within the balance set by paragraph 14, remains a matter for the decision-maker in accordance with ordinary principles" (see paragraphs 60 and 61 of Lord Carnwath's judgment, paragraphs 29, 30, 39 and 45 to 48 of the Court of Appeal's). (5) As Lord Gill observed, the "message to planning authorities [in paragraph 47 of the NPPF] is unmistakeable" (paragraph 77 of his judgment). The "obvious constraints on housing development" include, he said, "development plan policies for the preservation of the greenbelt, and environmental and amenity policies and designations such as those referred to in footnote 9 of paragraph 14", and the "rigid enforcement of such policies may prevent a planning authority from meeting its requirement to meet a five-years supply" (paragraph 79). If an authority "in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated". In those circumstances, said Lord Gill, it is "reasonable for the guidance [in paragraph 49] to suggest that … the development plan policies for the supply of housing, however recent they may be, should not be considered as being up to date" (paragraph 83). In such cases, "the focus shifts to other material considerations", and "the wider view of the development plan policies has to be taken" (paragraph 84). And the decision-maker "should … be disposed to grant the application unless the presumption [in favour of sustainable development] can be displaced" (paragraph 85). 22. Those five basic points show how the "presumption in favour of sustainable development" in paragraph 14 of the NPPF is engaged and how it is operated in cases where a local planning authority has failed to "demonstrate a five-year supply of deliverable housing sites". But they also provide the context in which the court has to consider the opposite case – such as the one we are dealing with here – in which the authority has done what Government policy in the NPPF requires it to do, has put in place an up-to-date local plan, and is able to demonstrate the necessary five-year supply.” 55. In paragraph 50 of the same judgment, Lindblom LJ also stated: “50 I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system, or in proceedings before the Planning Court, or in subsequent appeals to this court. The court should always resist over complication of concepts that are basically simple. Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave the decision-maker with a wide discretion. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law: see paras 8–14, 22 and 35 above. I would endorse, and emphasise, the observations to the same effect made by Holgate J in the Trustees of the Barker Mill Estates case[2017] PTSR 408 , paras 140–143.” 56. The Court of Appeal reconsidered the principles as to the relationship between the ‘tilted balance’ and section 38(6) PCPA 2004 in Gladman Developments Ltd v SSHCG[2021] PTSR 1450 . Amongst other things, the Court of Appeal recognised that breach of development plan policies may form part of the assessment of the tilted balance, including the weight to be given to such breach. 57. So far as challenges brought under section 288 of the 1990 Act are concerned, there are “seven familiar principles” set out in Bloor Homes East Midlands Ltd. v SSCLG[2014] EWHC 754 (Admin) , but restated and reinforced in St Modwen Developments Ltd v Secretary of State[2017] EWCA Civ 1643 , per Lindblom LJ at [6]: "(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28). (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2)[2004] 1 WLR 1953 , at p.1964B-G). (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment[1995] 1 WLR 759 , at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions[2001] EWHC Admin 74 , at paragraph 6). (4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council[2012] PTSR 983 , at paragraphs 17 to 22). (5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H). (6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government[2012] EWHC 1419 (QB) , at paragraph 58). (7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. in Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government[2013] 1 P. & C.R. 6, ([2012] EWCA Civ 1198 , at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).” 58. The meaning of development plan policies is a matter of law: see Tesco v Dundee City Council[2012] PTSR 983 at paragraphs 17-22. That principle was repeated by the Supreme Court in Suffolk Coastal District Council v Hopkins Homes Ltd[2017] PTSR 623 , Lord Carnwathat paragraphs 22 to 26. However, in so doing, Lord Carnwath at paragraph 26 also emphasised the need to distinguish clearly between issues of interpretation of policy appropriate for judicial analysis, and issues of judgment in the application that policy, and the importance of not eliding the two. 59. In that context, it is worth recalling that having set out the seven familiar principles in St Modwen, Lindblom LJ continued in that same judgment at [7] as follows: “7. Both the Supreme Court and the Court of Appeal have, in recent cases, emphasised the limits to the court's role in construing planning policy (see the judgment of Lord Carnwath in Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKCSC 37, at paragraphs 22 to 26, and my judgment in Mansell v Tonbridge and Malling Borough Council[2017] EWCA 1314 , at paragraph 41). More broadly, though in the same vein, this court has cautioned against the dangers of excessive legalism infecting the planning system – a warning I think we must now repeat in this appeal (see my judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council …, at paragraph 50). There is no place in challenges to planning decisions for the kind of hypercritical scrutiny that this court has always rejected – whether of decision letters of the Secretary of State and his inspectors or of planning officers' reports to committee. The conclusions in an inspector's report or decision letter, or in an officer's report, should not be laboriously dissected in an effort to find fault (see my judgment in Mansell, at paragraphs 41 and 42, and the judgment of the Chancellor of the High Court, at paragraph 63).”
“[o]utside of the settlement boundaries, development will normally only be permitted where the site is allocated for development, or in a made Neighbourhood Plan, or is specifically permitted by other relevant policies of this Plan, or it is in accordance with paragraph 80 of the NPPF (2021).” 63. This ground of challenge focuses on that part of the Inspector’s decision dealing with the EJLP, and paragraphs 65-68 of his decision in particular. 64. The Claimant submits that although the Inspector recorded in paragraph 65 of his Decision that the Council’s position was that the appeal scheme would be contrary to the EJLP, he did not record that the 2nd Defendant’s main planning witness had agreed that would be the case, and the Inspector did not make any finding as to whether, in his judgment, the proposed development would be in conflict with Policy SP03, or any other policy in the EJLP. 65. In this regard, the Claimant notes that the 1st Defendant accepts that the Inspector did not state in terms whether he found the scheme to conflict with policy SP03 but, that the Defendants have both submitted that there was no need for the Inspector to record his finding on this issue, given the parties’ agreement that there would be a conflict with Policy SP03. In response, the Claimant submitted this is wrong because, irrespective of whether the parties were in agreement, it is not possible to understand whether or not the Inspector accepted that the proposed development was in conflict with this key policy in the emerging JLP, or if he did not accept that to be the case, what his reasons for that finding were. 66. Mr Cosgrove developed these submissions orally before me at the hearing in conjunction with the other elements of Ground 1, but with a particular focus on the question of whether or not the Inspector had erred in his approach to Policy SP03, whether in terms of its interpretation or in relation to the need to take account of material considerations and adopt a rational approach (the other elements of Ground 1 with which I will deal with later). I find it convenient to deal with this element of Ground 1 first. 67. Applying the well-established legal principles to an Inspector’s decision of this kind (above), and reading the decision-letter as a whole addressed to the well-informed reader, I do not consider there to be any force in this element of Ground 1. 68. I agree with the submissions made by Mr Fraser and Mr Williams for Defendants that it is relevant to this ground that it was clear that the main parties had accepted that there was conflict with Policy SP03 of the EJLP. In my judgment, such acceptance was unsurprising given the terms of that emerging policy and the location of the Appeal Site. I agree with their submissions that this was not, therefore, a matter in issue before the Inspector; it was not one with which he was required, as a matter of law, to deal with expressly in his Decision (particularly given that such a Decision is directed to the parties who were in agreement). 69. In my judgment, there was no requirement in law arising on the facts of this case for the Inspector to record that the 2nd Defendant’s planning witness agreed with the position. It was common ground in any event. Nor was he required to set out more reasoning on this, in the absence of any material dispute between the parties before him on the appeal as to the existence of such conflict. 70. I also consider it is implicit in the context of the Decision read as whole, reflecting the agreed position of the main parties at the inquiry, that the Inspector was proceeding on the basis that such a conflict did inevitably arise in consequence of the proposed deletion of the allocation of the Appeal Site from the EJLP through the Claimant’s Main Modifications. 71. That proposed deletion, along with the other proposed Main Modifications, necessarily meant that the Appeal Site fell outside the settlement boundary and remained part of the countryside. The parties, and the 2nd Defendant’s planning witness, understandably agreed that the proposed development was consequently in conflict with policy SP03. It was a proposal for development outside the relevant settlement boundary, on a site no longer proposed for allocation. No one was suggesting it was proposed for development in the Neighbourhood Plan, nor that it was otherwise specifically permitted by other relevant policies of the EJLP, nor that it was in accordance with what was paragraph 80 of the NPPF (2021). There was therefore no issue between the main parties which the Inspector was required to resolve, let alone a principal important controversial issue in this respect. 72. In these circumstances, I do not consider that the Inspector was under any legal duty to record the agreement of the 2nd Defendant’s planning witness to this; nor was under a legal duty to set out his own express agreement with that conclusion, particularly where it is both unsurprising, and implicit in the Decision read as a whole in any event. As to the latter, I consider it implicit from the way in which the Inspector proceeded to deal with the matter which was in issue before him, namely the weight to be attached the EJLP. The respective differences between the parties on that issue, and the Inspector’s own conclusion on that topic, are implicitly predicated on the acceptance of the Development’s conflict with the EJLP. The material issue in dispute was the weight to attach to the EJLP given that conflict. 73. The Inspector’s reasoning was therefore unsurprisingly directed at that question. This naturally was the focus of his reasoning in paragraphs 65-71. It is in those paragraphs that the Inspector went on to explain his reasons for attaching the EJLP very limited weight. On any fair reading of the decision, it is implicit that in ultimately deciding to do so, the Inspector was accepting the common ground that the Development conflicted with Policy SP03. It is not realistically tenable to read the Decision in any other way. 74. Accordingly, I do not consider there to have been any legal error in the Inspector’s approach to Policy SP03, nor any inadequacy in his reasoning for the reasons summarised above, and for the reasons given by the Defendants. This element of Ground 1 fails. Ground 1(b): Failure to take account of material considerations and irrational approach to the weight to be accorded to Policy SP03 75. Under this second element of Ground 1, the Claimant contends that although the Inspector concluded his section on the EJLP with the conclusion that he accorded the emerging JLP “very limited” weight (as identified above), the Inspector’s reasons for reaching that judgment disclose errors of law in his approach. 76. The Claimant submits that the weight to be accorded to Policy SP03 was a principal important controversial issue at the inquiry. The Claimant contends that having regard to the factors relevant to the question of weight that are identified in paragraph 48 of the NPPF on which the Claimant relied, the Inspector necessarily accepted that in general terms the EJLP was at an advanced stage. The Claimant contends this was a matter which suggested giving greater weight to the EJLP’s policies (as it had argued before the Inspector). The Claimant also submits that the Inspector identified no inconsistency between the EJLP and the NPPF, again which the Claimant submits justified giving greater weight to the EJLP’s policies. 77. In this context, the Claimant contends that the only reason identified by the Inspector which might conceivably justify reducing the weight to be given to the EJLP was that stated in paragraph 66 of his Decision: “significant changes were made to its policies from those submitted to the Secretary of State and the outcome of the hearings was unknown.”
“Although at an advanced stage of preparation significant changes were made to its policies from those submitted to the Secretary of State and the outcome of the Hearings is unknown.” 87. I agree with the Defendants that the position was in fact more nuanced than the Claimant’s assumptive position that the weight the EJLP should enjoy was greater than that decided by the Inspector, given the specific reasons the Inspector gave, even if succinctly expressed. 88. As the Claimant has identified, it was certainly the case that the Examining Inspectors considered there to be fundamental problems with the EJLP as submitted for examination to them in terms of its approach to strategic housing. It is also the case that the Examining Inspectors had put forward proposals to address those problems as set out above. But it is also clear from the terms of those proposal in the Examining Inspectors’ letter that they had not stipulated, or prescribed, the specific form of replacement policies like Policy SP03. That was inevitably a matter for the Council to formulate by way of Main Modifications. It is also obvious that once formulated, such Main Modifications would then need to be subject to public consultation. One purpose of this consultation would be to allow persons to make representations about what the Claimant was proposing by way of a response. The Main Modifications and representations about them would then be scrutinised by the Examining Inspectors, with hearings as necessary, in the way that had happened, but where the outcome of that process was unknown. 89. Accordingly, whilst the EJLP was in an advanced stage of preparation in one sense (i.e. it had reached the stage of Main Modifications having been subject to public consultation and hearings in respect of representations about those Main Modifications had just concluded), the Claimant’s specific reliance on that stage reached in that process, and the attack presented in the ground of challenge, fail to recognise the basic point that the Inspector was lawfully raising in his reasoning. The “Main Modifications” that the Claimant had proposed did indeed involve “significant changes” to the EJLP when considered against the EJLP submitted for examination originally. Policy SP03 set out a proposed policy approach by the Claimant affecting the Development in a manner which was not prescribed, or pre-endorsed, by the Examining Inspectors at the time. It was a proposed Main Modification on which the public could expect to be consulted, be able to submit representations, and expect the Examining Inspectors duly to consider and express views in due course. That is the process to which the Inspector here was referring when identifying that the outcome of the Examination hearings before the Examining Inspectors was unknown. 90. Policy SP03 in its proposed form in the Main Modifications created a presumption against housing development being provided outside of settlement boundaries and in circumstances where the previous settlement boundaries were being maintained. Its effect was therefore very similar in operation to the already adopted development plan, which similarly presumes against housing development outside the same settlement boundaries, and in particular policy CS2and H7 which the Inspector had addressed in his Decision and paragraphs 17-21 and 61-64. 91. At the hearing I was taken to Policy SP03 of the EJLP in a form which shows both how it was originally formulated, and how the Claimant had proposed to modify it in the Main Modifications in consequence of the Examining Inspector’s letter of December 2021. I agree with the Second Defendant that care must be taken in this respect in referring to the tracked change version of Policy SP03 as being “Policy SP03 as modified”
“to carry weight policies must be consistent with the Framework as explained in paragraph 219 […]” and he proceeded on that basis. 115. Paragraph 219 of the NPPF provides that: “ … 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).” 116. The Claimant argues that properly construed and applied, paragraph 219 of the NPPF does not state that in order to carry weight, polices must be consistent with the NPPF, nor does it preclude weight being given to relevant policies even if they are not consistent with the NPPF. The Claimant submits that by proceeding on the basis a different effect of paragraph 219 of the NPPF, the Inspector misunderstood paragraph 219 of the NPPF and fell into error. 117. In response to the Defendants’ submissions that this was not the approach adopted by the Inspector, the Claimant argues that it plainly was, and contends that it was recorded in the Decision. Accordingly, the Claimant argues that whether in consequence of what it says was the Inspector’s misunderstanding of paragraph 219 of the NPPF or otherwise, the Inspector’s reasons for finding that the conflict with Policies CS1, CS2 and H7 could only be accorded limited weight depend entirely on their consistency with the NPPF as assessed by the Inspector. 118. The Claimant further argues that the Inspector has left out of account matters which were plainly relevant to the weight to be accorded to the conflict with the development plan policies that had been set out in detail in the Claimant’s Closing Submissions to the Inspector at paragraphs 14-15, namely: (1) the supply of market and affordable housing in Mid Suffolk; (2) the EJLP and the evidence base underpinning it; and (3) the supply of market and affordable housing in Thurston. 119. The Claimant argues that the Inspector’s failure to take these matters into account in determining the weight to be accorded to the conflict with the Development Plan was irrational, and founded on a misunderstanding of what he could and should lawfully consider. The Claimant disagrees with the Defendants’ submissions that the Inspector should be taken to have taken those matters into account by reference to the parties’ evidence and submissions, and submits there is nothing in the Inspector’s decision letter to suggest that he took the matters complained about into account in reaching that judgment. 120. The Claimant summarised its position under this Ground as being that the Inspector erred in law by: a. failing to approach the appeal on the basis that the starting point, in accordance with s.38(6) of the 2004 Act, was that it should be dismissed unless there were material considerations indicating otherwise; b. approaching the appeal on the basis that if the tilted balance in paragraph 11 of the NPPF were met, planning permission should be granted; c. proceeding on the basis that, in order to carry weight, polices must be consistent with the NPPF which was unlawful and a misunderstanding of paragraph 219 of the NPPF; d. failing to take into account relevant considerations in determining the weight to be accorded to the conflict with the Development Plan. 121. As with Ground 1, it is clear from this that there are various elements to the way in which Ground 2 is articulated. I have considered the elements Ground 2 both individually and as a composite whole. For the reasons set out in more detail below, I do not consider there to have been any error of approach by the Inspector, when his decision is read fairly and as a whole, whether on any of the individual elements or cumulatively. In setting out my reasons for reaching that conclusion, it is convenient to deal with each of the elements in turn. Ground 2(a) – alleged failure to approach the appeal on the basis of s.38(6) of the 2004 Act 122. In its submissions on this point, the Claimant accepts that the Inspector did “acknowledge” section 38(6) of the 2004 Act, and therefore the Claimant does not pursue an allegation of a failure to do so. It is clear from the terms of paragraph 58 of the Inspector’s Decision that the Inspector had directed himself as to the effect of section 38(6) of the 2004 Act. Notwithstanding this, the Claimant argues that although acknowledging this provision, the Inspector subsequently failed to apply it when making his Decision in what followed. 123. In my judgment, that is a challenging argument in circumstances where: (1) the Inspector has correctly and explicitly identified the relevant statutory provision by way of starting point for his analysis; (2) it was common ground between the parties that the Development conflicted with the development plan; and (3) it is hardly surprising that the focus of the Inspector’s reasoning was on the issue in dispute before him, namely whether or not the application before him should be determined otherwise in accordance with the development plan. 124. On any fair reading of the Inspector’s decision taken as a whole, and in light of the common ground as to conflict with the development plan about which the Inspector did not need to elaborate, I consider it is clear that the Inspector was applying the approach set out in section 38(6) of the 2004 Act in his Decision. The conflict with the development plan was uncontroversial, as was the consequential presumption that followed from that. But the Inspector’s reasoning understandably focused on the question of whether there were other material considerations indicated that the Development should be determined otherwise. I do not detect anything unlawful in that focus, addressed as it was to the parties to the dispute. I reject this element of the challenge under Ground 2. Ground 2(b) – Allegation of approaching the appeal on the basis that if the tilted balance in paragraph 11 were met, planning permission should be granted. 125. As to the Claimant’s allegation that the Inspector failed to apply section 38(6) of the 2004 Act by applying the policy approach in paragraph 11 of the NPPF instead, it seems to me that this is an obvious misreading of the Inspector’s decision read as a whole. I agree with the Defendants that it fails to recognise the principles the Court of Appeal articulated in Gladman (summarised above) as to the lack of prescription as to how the Inspector goes about considering the issues under section 38(6) of the 2004 Act and the tilted balance under the NPPF. Moreover, the fact that the Inspector has addressed and applied the tilted balance in paragraph 11 of the NPPF in his Decision does not mean that he has failed to apply section 38(6) of the 2004 Act. I am unable to see any reasonable way of reading the Decision in that way. I regard this criticism as suffering from the sort of legalistic and over-complicated sort of attack on what is otherwise clear as to the general thrust of the Inspector’s reasoning, and of a type which the Court has consistently sought to guard against. 126. Having directed himself in accordance with section 38(6) of the 2004 Act in the way I have set out above, the Inspector was not only entitled, but obliged, to consider the tilted balance under paragraph 11 of the NPPF in considering whether there were other material considerations indicating the appeal should be determined other than in accordance with the conflict with the development plan. 127. Recognising the policy effect of the tilted balance set out in paragraph 11 of the NPPF in a particular case, and then ultimately determining (as a matter of planning judgment) to grant planning permission in light of that policy approach, was an entirely lawful approach for the Inspector to adopt in this case. As the Defendants point out - and the principles clearly establish - there is no prescribed format as to the way the Inspector was required to set out his reasoning on these matters. The real question is whether the Inspector applied section 38(6) of the 2004 Act in substance. Taking account of the policy approach set out in paragraph 11 of the NPPF in the way he did was perfectly consistent with such application. In those circumstances, I do not consider there to be any force in the notion that the Inspector’s analysis in paragraph 59 of his Decision, or in the summary of his conclusions in paragraphs 74-75 of his Decision, reveal an incorrect approach, or some sort of unlawful departure from the correct application of section 38(6) of the 2004 Act. 128. To the contrary, I consider that the Inspector was lawfully taking into account paragraph 11 of the NPPF as applied to the facts of the case. He was entitled: (1) to reach a conclusion that the most important development plan policies for determining the appeal were out of date; (2) to reach a judgment that the adverse impacts of granting planning permission would not significantly and demonstrably outweigh the benefits he had identified (having reached conclusions on the weight to attach to those benefits); and (3) to take that conclusion into account in his determination of the appeal in a way which is consistent with the application of section 38(6) of the 2004 Act. 129. Moreover, I agree with the 1st Defendant that this criticism of the Inspector’s reasoning (with its understandable focus on the planning judgment that arose under paragraph 11 of the NPPF in this particular case) is surprising, given that the same focus is unsurprisingly to be detected in the Claimant’s own Closing Submissions to the Inspector. To a significant degree, the parties themselves were inevitably concentrating on the question that arose under paragraph 11 of the NPPF. This was in light of the common ground that the Development conflicted with the development plan, but also that the “tilted balance” under paragraph 11 of the NPPF was engaged in this case. 130. Accordingly, notwithstanding the persuasive manner in which Mr Cosgrove sought to argue this ground of challenge in his written and oral submissions, I do not consider it to be well-founded. In reality, it amounts to little more than a disagreement with the merits of the Inspector’s overall judgment on these issues before him. Ground 2(c) – alleged misinterpretation of paragraph 219 of the NPPF 131. To similar effect, I consider the Claimant’s criticisms of the Inspector’s reasons in paragraph 60 of the Decision and his reference to paragraph 219 of the Framework to be without material substance. The Claimant argues that the Inspector misinterpreted paragraph 219 as requiring a policy to have consistency with the NPPF in order to carry weight. In my judgment, that is not a fair reading of paragraph 60 of the Decision, nor of the reasoning as a whole. 132. In paragraph 60 the Inspector was recognising that the fact that the development plan policies were considered to be out of date did not mean that they carried no weight. He identified correctly that it was possible for policies deemed to be out of date still to carry significant weight. I consider it is artificial to read the Inspector’s words: “To carry weight policies must be consistent with the Framework” in isolation, or without proper recognition of the words that follow : “as explained in Paragraph 219 which, amongst other things, explains that the closer that policies in the plan are to policies in the Framework, the greater weight that may be given to them.”