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Developer loses Court of Appeal battle over whether 'tilted balance' applied to 50-home scheme

It was not unfair for a planning inspector to find that the ‘tilted balance’ did not apply to an application for a housing development, the Court of Appeal has ruled.

In Paul Newman New Homes Ltd v Secretary of State for Housing, Communities And Local Government [2021] EWCA Civ 15 Lady Justice Andrews, with whom Lord Justice Coulson and Lord Justice Peter Jackson agreed, found against developer Paul Newman New Homes, which had appealed against the Secretary of State For Housing, Communities and Local Government’s decision to accept the inspector’s conclusion, a stance earlier upheld in the Planning Court.

The developer had applied to the former Aylesbury Vale District Council - which was abolished and became part of Buckinghamshire Council last year - to build 50 homes in countryside at Soulbury.

Andrews LJ said: “The central issue on this appeal is whether an experienced planning inspector and a specialist planning judge (Sir Duncan Ouseley) correctly interpreted paragraph 11(d) of the 2018 version of the National Planning Policy Framework when dismissing the appellant developer's appeals following the failure [of] Aylesbury Vale to determine its application for outline planning permission.”

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In a letter to the Planning Inspectorate in November 2018, Aylesbury Vale indicated it would have refused the application in part due to its detrimental effect on the character and appearance of the rural area.

The council relied on the 2004 Aylesbury Vale District Local Plan, which was still applicable.

Its letter said that the application “would clearly be perceived to urbanise the undeveloped and rural nature of the entrance to the town” and be “perceived as an incongruous 'estate' lying beyond the existing settlement separated from it by a distinct topographical feature, and would appear to be an incongruous feature in the open countryside beyond the settlement boundary”.

The inspector found the council had a five-year housing land supply and that the presumption in favour of the development under paragraph 11(d) - the 'tilted balance’ - was inapplicable and the benefits of the scheme did not outweigh its harms.

Paul Newman New Homes appealed on the grounds that Sir Duncan erred in construing paragraph 11(d) of the NPPF contrary to its natural meaning and in agreeing with the inspector's construction that the policy was intended to guide decision-making at the outline application stage.

Andrews LJ said: “There is nothing inherently unfair to an applicant or contrary to the overall scheme of the NPPF or the 2004 Act, both of which afford primacy to the local plan, about the balancing exercise being carried out under section 38(6) in circumstances where an experienced planning inspector has found that there is a policy in the development plan that is relevant, important and up-to-date.

“For those reasons I would uphold the interpretation of Paragraph 11(d) adopted by the judge.”

She also concluded that both the council and the inspector had correctly understood the policy on countryside and conservation.

Mark Smulian

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