Tilt!

“Tilt” in pinball is an example of a good rule: in order to discourage an unwanted outcome (cheating), transgression (sloping the table) leads to a predictable penalty (game over).

The purposes of the NPPF’s “tilted balance” (the phrase just being planners’ jargon) are to discourage local planning authorities from:

⁃ relying on out of date local plans

⁃ not maintaining (potentially with an additional buffer) at least five years’ housing land supply (now watered down to a minimum of three years’ housing supply if there is an up to date neighbourhood plan that allocates land for housing development) and

⁃ (since the introduction of the housing delivery test) not ensuring that a defined number of homes are delivered each year.

Where the tilted balance applies, it should in many circumstances be easier for developers to secure planning permission which is not in accordance with the relevant local plan and/or neighbourhood plan, in that paragraph 11 (d) of the NPPF provides as follows:

“(d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:

i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or

ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.

There is a footnote to “out-of-date”: “This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73); or where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.”

There is another crucial footnote, to (d)i: “The policies referred to are those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63); and areas at risk of flooding or coastal change.”

Already, that description surely begins to raise obvious questions:

⁃ Is the rule sufficiently clear and understood, such that the risk of the penalty actually influences council members’ and officers’ decision making so as to discourage those unwanted outcomes: to encourage up to date plans, the maintenance of an adequate housing land supply, sufficient homes being built? If the public doesn’t understand it, it’s going to have no effect at the ballot box – so how do we expect it to influence councillors, for whom being seen to protect their local areas from change will usually be a more potent vote winner?

⁃ To what extent can the authority avoid those unwanted outcomes in any event, given for instance the slowness of the local plans system even for a authority wishing to make swift progress and given the reliance on the private sector not only to promote suitable sites but then proceed to build them out?

⁃ The footnote to (d)i reduces the impact of the rule in constrained areas which usually turn out to be those where the documented need for housing is greatest.

⁃ Should there be a different penalty other than to make it more likely that development will take place in a way which is unplanned for and often unpopular? What are the most direct “carrots and sticks” that could be deployed?

Four years ago this month my thoughts were wandering in these directions, while sitting in the Supreme Court in the Suffolk Coastal case, acting for Richborough Estates (thank you Paul Campbell and Chris Young). The case was a turning point in the consideration of how the tilted balance is intended to work. It relates to the original 2012 version of the NPPF but the principles still hold true. The judgment in Suffolk Coastal District Council v Hopkins Homes Limited, Richborough Estates Partnership LLP v Cheshire East Borough Council (Supreme Court, 10 May 2017) is a masterpiece in cutting through what had been a series of conflicting rulings by the lower courts as to how the tilted balance was to be interpreted in order to pull us all back to the basic principles. I tried to summarise them in a blog post at the time, but for instance:

⁃ Let’s not overstate the influence of the test: the NPPF is no more than “guidance” and is no more than a “material consideration” for the purposes of section 70(2) of the 1990 Act: “It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme”. (Lord Carnwath, paragraph 21) (i.e. there’s a get-out so that a decision maker can determine that, notwithstanding the tilted balance, planning permission should not be granted).

⁃ Deprecation of the “over-legalisation of the planning process, as illustrated by the proliferation of case law on [the tilted balance]. This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay-reader.” (Lord Carnwath, para 23) (i.e. the court will always be reluctant to interfere with the judgment arrived at by the decision maker).

⁃ As long as decision makers apply it lawfully (which means they first have to understand it – not easy!) the application of the tilted balance test engages matters of planning judgement, not legal interpretation. (i.e. legal challenges to the decision maker’s judgment, have to be based on unlawful or irrational reasoning on the part of the decision maker – never easy).

⁃ the basis for the test arises from the importance that the NPPF places on boosting the supply of housing. “The message to planning authorities is unmistakeable”. (Lord Gill, paragraph 77). He refers to “the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five year period”. (paragraph 78). (i.e. the test has a real world objective which we must not lose sight of – boosting the supply of housing).

⁃ “If a planning authority that was 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”. (Lord Gill, paragraph 83). (i.e. the outcome of the test may well be that planning permissions are granted notwithstanding an authority’s policies – that’s the whole point of it).

The cases have kept coming. Already, in 2021, there have been no fewer than three rulings from the Court of Appeal – on a test in a non statutory policy document – this is surely ridiculous. Does this arise from its unnecessary complexity and “angels dancing on the head of a pin” abstractions, or from the way that in practice the so-called tilted balance hardly seems to provide any tilt at all, even in areas with a severe under-supply of housing, perhaps contrary to the original objective?

Three 2021 Court of Appeal cases:

Gladman Developments Limited v Secretary of State (Court of Appeal, 3 February 2021)

The case raised “two main issues: first, whether a decision-maker, when applying the “tilted balance” under paragraph 11d)ii, is required not to take into account relevant policies of the development plan; and second, as a connected issue, whether it is necessary for the “tilted balance” and the duty in section 38(6) of the Planning and Compulsory Purchase Act 2004 to be performed as separate and sequential steps in a two-stage approach. There is a further issue: whether the “tilted balance” under paragraph 11d)ii excludes the exercise indicated in paragraph 213 of the NPPF, which requires that policies in plans adopted before its publication should be given due weight, “according to their degree of consistency with [it]“.

Answers from the court: no, no and (on the further issue) no.

R (Monkhill Limited) v Secretary of State (Court of Appeal), 27 January 2021)

The case raised “one principal issue […]: whether the inspector was wrong to interpret the first sentence of paragraph 172 of the NPPF, which says “great weight should be given to conserving and enhancing landscape and scenic beauty” in an AONB, as a policy whose application is capable of providing “a clear reason for refusing” planning permission under paragraph 11d)i of the NPPF.”

Answer from the court: no.

Paul Newman New Homes Ltd v Secretary of State (Court of Appeal, 12 January 2021)

“Ever since a NPPF was first introduced in March 2012, the interpretation of its provisions has provided a fertile hunting ground for planning lawyers. The 2018 version was intended to produce greater clarity and simplicity, but unfortunately it has not been entirely successful. The effect of the appellant’s argument was that if there is only one relevant policy in the local plan, the developer gets the benefit of the tilted balance (absent the operation of one of the exceptions). Mr Lockhart-Mummery eschewed any suggestion that this was a “numbers game” but he also very fairly accepted that it is virtually unknown for a single policy in a local plan to embrace all the material considerations that would suffice to enable a decision-maker to determine a planning application, especially if that application is to build houses.”

Answer from the court: no. (“… at the end of the day 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 11d) adopted by the Judge and applied by the Inspector).”

Housing delivery test:

The Government has now published the results of its 2020 housing delivery test measurement (19 January 2021). The figures are important, because if the housing delivery test indicates that the delivery of housing was less than 85% of the housing supply requirement over the last three years, a buffer of 20% has to be added to that requirement. If delivery was less than 75% of the housing requirement over the previous three years, that is a trigger for the application of the tilted balance.

As an adjustment to recognise at least to some extent to effects of Covid this past year, authorities’ requirements this year were reduced by a month.

This year there are (by my count) 55 authorities for whom the tilted balance applies following these latest measurements.

Has that featured in the relevant local press? What are authorities doing about it? I would be pleased to hear.

And what of the obvious flaw, highlighted by Zack Simons in his 21 January 2021 blog post Elephants in the Room: Green Belts vs. the Housing Delivery Test – the obvious correlation between green belt authorities and those that are failing the delivery test?

I just wonder whether it might not be better to sweep all of this complexity away and replace it with a policy that provides for an enhanced presumption in favour of development if relevant housing land supply figures are not met: the higher the shortfall, the more weighty the presumption? Leave the detail to decision makers, including to inspectors on appeal – attempts at greater prescription are doomed to fail and are not understood by the public.

There should also be additional consequences for authorities that fail to meet these targets, and their councillors – but also a new transparency on the part of the Government as to (1) the basis for its national target and (2) the need for frank annual reporting to Parliament as to its performance as against that target.

To encourage desirable outcomes, we need rules that everyone understands. Plan positively = great places. A failure to plan positively = intervention, remedial steps.

But enough of this quixotic tilting.

Simon Ricketts, 6 February 2021

Personal views, et cetera