Securing major residential developments – How out-of-date development plans and the “tilted balance” can help you

There are currently a large number of local authorities that are having difficulties updating their Local Plans, or who have abandoned the task altogether.  For instance, Basildon resolved in March to withdraw its Local Plan and Welwyn Hatfield Borough Council currently considers itself to be in an “impossible situation” in that it is being required to include sites in its Local Plan that have been rejected by councillors.

The lack of an up to date Local plan has far-reaching implications for planning decision-making in that, if a local authority does not have an up-to-date Local Plan or 5-year housing land supply, it potentially triggers what planning jargon calls the “tilted balance” in favour of granting planning permission contained in the National Planning Policy Framework (“NPPF”).

The “tilted balance” presents opportunities for speculative planning applications to come forward. In particular for agricultural landowners that have large sites for major residential developments which could fill some of the housing need of the local area.

What is the “tilted balance”?

The “tilted balance”, or presumption in favour of sustainable development, is contained in paragraph 11(d) of the NPPF which provides that planning permission should be granted where there are no relevant development plan policies, or where the policies which are most important for determining the application are out-of-date.  However, this is unless the application of policies in the NPPF that protect areas or assets of particular importance provide a clear reason for refusing permission, or the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF as a whole.

Are there any limitations?

The limits of the presumption in favour of sustainable development were demonstrated by two Court of Appeal cases last year.  In Monkhill v Secretary of State for Housing, Communities and Local Government, the Court held that the requirement in the NPPF to conserve and enhance landscape and scenic beauty in Areas of Outstanding Natural Beauty was capable of providing a clear reason for refusing planning permission for a development of 29 homes in the grounds of a former country house in Surrey, disapplying the “tilted balance” where the local authority could not demonstrate a five-year housing land supply.

Similarly, in Paul Newman New Homes Ltd v Secretary of State for Housing, Communities and Local Government, the Court upheld a decision that the existence of a general, up-to-date policy protecting the character and appearance of the rural area was by itself sufficient to preclude the operation of the tilted balance to an application for a development of 50 houses, notwithstanding the absence of policies specifically targeted at the type or location of the development under consideration.

Opportunities for speculative landowners

These cases demonstrate that the application of the presumption in favour of sustainable development is far from straight forward and it is likely to continue to occupy the Courts for some time, particularly given the difficulties local authorities are experiencing in updating their Local Plans.  It is unclear at this stage how the Government propose to deal with the many competing interests that are currently slowing down the plan-making process.

In the meantime, speculative planning applications are likely to remain a common feature of the planning system. Something any landowner, especially of large sites, should be thinking about.