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Common sense approach to the ‘tilted balance’, as the sun begins to set on paragraphs 14 and 49

In a welcome injection of common sense into the rumbling controversy about when, and how, the 'tilted balance' in paragraph 14 of the NPPF might apply, an Inspector in Chelmsford has dismissed Gladman's appeal against refusal of outline permission for up to 140 houses on an edge-of-settlement site in Danbury, Essex.

The decision is primarily interesting for her approach to the development plan. In Chelmsford, the adopted local plan has a plan period running to 2021, and makes provision for predicted growth in housing for that period based on numbers contained within the now-revoked East of England Plan. As such the housing supply policy in the adopted plan contains a number which stems from the EEP and is not OAN.

However, Chelmsford has commissioned an OAN study to inform its emerging plan, which identifies the figure of 805 dwellings per annum as its OAN to the end of the next plan period, and using that figure of 805, the City Council is able to demonstrate a five-year supply of housing land. That means that, whatever else is true, paragraph 49 of the NPPF has no application.

Unusually, however, of all the sites making up that five-year supply, the vast majority (and in any event plenty more than five years' worth) are allocations within the adopted plan and/or sites within the settlement boundaries identified in that Plan. This means that Chelmsford can show a five-year supply without departing from any of the provisions of its adopted plan.

Gladman argued (and has consistently argued) that the relevant policy is out of date regardless of the five-year housing land supply position because it contains a growth number from the revoked EEP. Following a seven-day inquiry in early 2018, Inspector Christina Downes agreed with the City Council that in such circumstances, the policy was not out of date, not inconsistent with the NPPF, and the 'tilted balance' did not apply. She also rejected a creative argument made on Gladman's behalf that even though they could show a five-year supply without departing from the spatial strategy within the adopted plan, they could not show sufficient supply to meet the entire OAN up to 2033 within the adopted plan. Relying on Gladman v Daventry DC [2016] EWCA Civ 1146 she correctly noted that the only requirement in NPPF para 47 that was relevant to decision-taking (rather than plan-making) was the requirement to demonstrate a five-year supply.

She also found that the scheme presented less than substantial harm to a nearby listed building, which was not outweighed by the public benefits (applying the approach in NPPF para.134), and that the Appellant had failed to demonstrate that the three nearby SSSIs would not be harmed by increased recreational pressure arising from the proposals. She also found that the Appellant's LVIA had underestimated the landscape and visual impact of the proposals.

In the wake of yesterday's alarming news that we shall all have to re-learn new paragraph references within the draft revised NPPF, this decision is a comfortingly sensible example of how paragraph 14 ought to be applied, with the focus on the purpose behind the provisions (ensuring a boost to the supply of housing) rather than on mechanical or legalistic interpretation of its language.

Josef Cannon acted for Chelmsford City Council.