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NPPF 'tilted balance' must be taken into account even if not raised as an issue

03.05.2019

In Green Lane Chertsey (Developments) Limited v SSHCLG [2019] EWHC 990 (Admin), Jack Parker, who represented the Claimant housing developer in the High Court, secured the quashing of a decision of a planning inspector for his failure to take into account the presumption in favour of sustainable development in paragraph 11 of NPPF, even though the Appellant had not explicitly relied on the presumption in its appeal representations.

The planning appeal (which was decided by the written representations procedure) had concerned proposals for housing in Surrey. The local planning authority had explicitly accepted in its representations that it could not demonstrate a five year supply of deliverable housing sites but the Inspector did not take into account the presumption in favour of sustainable development in paragraph 11(d) of the NPPF as a consideration in favour of the proposals. In light of the planning authority's 5YHLS concession and because the Inspector should be taken to be aware of national planning policy of which the 'tilted balance' was a 'fundamental requirement', the Claimant successfully argued that the Inspector should have taken the 'tilted balance' into account and given express consideration to whether the adverse impacts of granting permission would 'significantly and demonstrably' outweigh the benefits, even though no representations were made to that effect by the Appellant.

The case is significant for a number of reasons. In particular, it demonstrates how some considerations may be so 'obviously material' to a decision that a failure to take account of them may be irrational, irrespective of the parties' representations to the decision maker (in accordance with DLA Delivery Ltd v Baroness Cumberlege of Newick [2018] EWCA Civ 1305). It confirms in that regard that the 'tilted balance' is a consideration so fundamental to national planning policy that it may have to be applied by a decision-maker, irrespective of whether it is explicitly referred to by those making representations.

Further, the Court even went so far as to suggest that, in light of the wording of paragraph 11(d), the 'tilted balance' should have been treated as being engaged in a case unless there was positive evidence of a five year housing land supply so as justify its 'disapplication'. While the point did not strictly arise (because the Council had explicitly conceded that it could not demonstrate a 5YHLS), the proper interpretation of paragraph 11(d) of the NPPF will no doubt be of interest to all practitioners in the field and may well be the subject of further litigation.

For a copy of the transcript of the Judgment, please click here. For further information about the case, please contact Jack or his clerks.