Earlier this week, an important High Court decision was handed down in relation to developer Wavendon Properties application for 203 homes on greenfield land to the north of Woburn Sands near Milton Keynes.

The decision is a landmark case not only through its clarification of NPPF (National Planning Policy Framework) paragraph 11(d) in so far as it refers to the ‘tilted balance’ applying when ‘the policies which are most important for determining the application are out of date’, but also in that it is the first challenge brought to the High Court where the Secretary of State determined there was a 5 year housing land supply, despite all other parties (including the Council themselves) agreeing otherwise.

In handing down the decision, Mr Justice Dove, of the High Court, quashed the Secretary of State’s decision to refuse the application in December last year. The judge found that the Secretary of State’s decision was inadequate in its consideration of five year housing land supply and that there was clear evidence that the Council’s deliverable supply fell short of the required figure at the time of the decision.

The application was originally submitted in 2016 and despite a recommendation for approval from Council officers, members of the planning committee determined the site would cause “significant and demonstrable harm” to planning policy objectives. Developer Wavendon Properties went on to appeal this refusal, with the Planning Inspectorate subsequently finding that the scheme provided significant social and economic benefits and in light of a lack of five year housing land supply, permission should be granted.

The application will now be determined by the Secretary of State for a second time for reconsideration in light of the High Court’s ruling.

Paragraph 11(d) of the NPPF sets out that policies “which are most important for determining the application” are out-of-date when the local planning authority cannot demonstrate a five year supply of deliverable housing sites (otherwise referred to as ‘the tilted balance’). The High Court judgement tells us clearly for the first time that a decision maker must form an overall judgement about the most important policies and whether or not, taken as a whole, these policies are to be regarded as out-of-date for the purpose of the decision. If they were out-of-date, then the ‘tilted balance’ or presumption in favour of development would be triggered.

In summary, the decision is important in that it clarifies the ‘tilted balance’ or presumption in favour can only be triggered when policies are considered collectively to be out-of-date. Many developers have been successful in the past in arguing that the presumption applies when only one or two of the most important policies are shown to be out-of-date, however, Justice Dove’s decision rules that the matter is still one of ‘overall judgement’; something that is likely to be seen by local authorities as an opportunity to apply the tilted balance in fewer cases.