The guiding principle
One comes back to the most elementary principle of planning law, emphasized by Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment  1 W.L.R. 759 (at p.780F-H): that the weight to be given to material considerations, including statements of government policy, is a matter for the decision-maker to judge, subject only to the constraint of rationality
In Crane v SoS we have a neighbourhood plan but less than 5 years supply, in a typical Pickles decision he gave the emerging neighbourhood plan ‘very substantial weight’ and threw out an appeal. The appellant challenged on on the grounds that he should have given an out of date lan less weight.
Justice Linblom was clear
- neither paragraph 49 of the NPPF nor paragraph 14 prescribes the weight to be given to policies in a plan which are out of date. Neither of those paragraphs of the NPPF says that a development plan whose policies for the supply of housing are out of date should be given no weight, or minimal weight, or, indeed, any specific amount of weight. One can of course infer from paragraph 49 of the NPPF that in the Government’s view the weight to be given to out of date policies “for the supply of housing” will normally be less, often considerably less, than the weight due to policies which provide fully for the requisite supply. …In Grand Union Investments Ltd. (at paragraph 78) I endorsed a concession made by counsel for the defendant local planning authority that the weight to be given to the “policies for housing development” in its core strategy would, in the circumstances of that case, be “greatly reduced” by the absence of a five-year supply of housing land. However, the weight to be given to such policies is not dictated by government policy in the NPPF. Nor is it, or could it be, fixed in the case law of the Planning Court. It will vary according to the circumstances, including, for example, the extent to which the policies actually fall short of providing for the required five-year supply, and the prospect of development soon coming forward to make up the shortfall.
- But in any event, however much weight the decision-maker gives to housing land supply policies that are out of date, the question he has to ask himself under paragraph 14 of the NPPF is whether, in the particular circumstances of the case before him, the harm associated with the development proposed “significantly and demonstrably” outweighs its benefit, or that there are specific policies in the NPPF which indicate that development should be restricted. That is the critical question. The presumption in favour of the grant of planning permission in paragraph 14 is not irrebuttable. And the absence of a five-year supply of housing land will not necessarily be conclusive in favour of the grant of planning permission. In this case it was not.
So in prescribing weight to some things and not others the presumption in the NPPF becomes an arbitrary predilection to be used as the SoS sees fit given local politics and whether an election is on the horizon, as long as they don’t express it like that. In other words despite the chaotic impact of the NPPF the political housing cycle, which it was supposed to replace, is not back in full force and the Pickles is entitled to presume against housing however out of date a plan is. So where is the incentive to get local plans up to date? Just give the impression of doing something with a neighbourhood plan that doesn’t supply enough housing and you need have have one, you can instead block everything else with the NP bait and switch, be a perfect Nimby authority and treat the NPPF with the contempt Uncle Eric gives it.
How can anyone claim the NPPF to be a good example of policy writing when it is do vague the SoS can use it to approve anything on greenfields irrespective of how badly located it is, and conversely reject every windfarm, G&T site and site in a vocal village (with a NP) irrespective of teh merits of a scheme. Despite the veneer of localism never has a SoS called in so much on such small site thresholds and taken over decisions to be made in Marsham Street.