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'Out of date' policies and site-specific considerations

‘Out-of-date’ assessments can be site specific, Mr Justice Holgate has confirmed. Tom Cosgrove QC and Ruchi Parekh analyse the ruling.

A judicial review claim seeking to quash outline planning permission for a 300-dwelling scheme in Woolpit, Mid Suffolk, has been dismissed on all grounds by Mr Justice Holgate. In Ewans v Mid Suffolk District Council (CO/3569/2020) (12 Feb 2021), the Judge reaffirmed ‘good sense’ decision-making while also providing a new gloss on the operation of paragraph 11(d) of the NPPF.

The focus of the challenge was the conclusion of the officer report, endorsed by the planning committee, that the policies most important for determining the application were ‘out-of-date’, thereby engaging the tilted balance. The criticism levied against the report was that it did not adequately assess whether the housing policies were consistent with the relevant NPPF policies, but merely referred to the fact that the restrictive approach to development in the local plan policies did not reflect the more balanced approached to decision-making in the NPPF. The Council argued – and the Judge agreed – that the relevant passage must be read in the context of the report as a whole. When so read, it was clear that material elsewhere in the report provided the context for the conclusion on consistency with NPPF policies. In any event, as the Judge emphasised, there was no requirement to refer explicitly to paragraphs in the NPPF which are well known to – and are applied day in, day out by – planning committees across the country.

Most notably, Holgate J dismissed the Claimant’s argument that an analysis of consistency, for the purpose of assessing whether policies were out-of-date, could not take into account site specific considerations. He accepted that a local planning authority may often consider it appropriate to carry out that analysis in a generic manner, such that its conclusion would be capable of applying to any proposal before it. However, the judge held that local planning authorities are not so restricted as a matter of law. Rather, the plain language in paragraph 11(d) plainly encompassed the ability to take into account, inter alia, the manner in which policies operate in relation to individual development proposals. Such conclusion may or may not relate to other applications as well.  

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The final ground of challenge related to the weight given to the Council’s emerging local plan, including an iterative document setting out the district’s infrastructure requirements. The Claimant complained that this document was itself liable to change over time, such that improper reliance was placed on it. The Judge confirmed that while paragraph 48 of the NPPF was a good starting point for the consideration of emerging plans, it was clearly not exhaustive. It was entirely proper for the Council to have placed weight on the emerging plan which included the up-to-date evidence of housing need – this was a matter of pure planning judgment with which the Judge would not interfere.

Tom Cosgrove QC and Ruchi Parekh, of Cornerstone Barristers, acted for the successful local authority.

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