Held, permission refused. (1) That footnote 6 to paragraph 11 of the NPPF 2019 restricted consideration of policies to those contained in the NPPF and excluded in particular development plan policies. However, the NPPF was expressed so that footnote 6 applied solely to paragraphs 11(b)(i) and 11(d)(i). Paragraph 11(d)(ii) did not require any relevant development plan policies to be excluded from consideration and it was permissible for a decision-maker to take them into account when conducting the tilted balance exercise. It was not sensible to divorce considerations which were relevant under the tilted balance from related development plan policies because the need for market and affordable housing was likely to gain strength from development plan policies which validated that need. There was no legal justification for the court to prescribe that the tilted balance in paragraph 11(d)(ii) and the presumption in section 38(6) of the 2004 Act be applied in two separate stages in sequence. There was nothing in the wording or effect of either provision which would justify the court acting in that way. It was permissible for the decision-maker to assemble all the relevant material and to apply the two balances together or separately. The position was no different in substance if the decision-maker applied an overall judgment to all relevant considerations which applied both the tilted balance in paragraph 11(d)(ii) and section 38(6). The shortage of housing land supply might have resulted from historic problems, or problems pre-dating the development plan, or be a relatively recent or temporary problem. Whether polices were in fact out-of-date and, if so, in what respects, and how much weight should be attached to those policies, would remain to be assessed by the decision-maker. Where paragraph 11(d)(ii) was triggered because of a shortage of housing land, it was a matter for the decision-maker to decide how much weight should be given to the policies of the development plan, including the “most important policies” referred to in paragraph 11(d). That included whether or not they were in substance out-of-date and if so for what reasons. The decision-maker might also take into account, for example, the nature and extent of any housing shortfall, the reasons therefor, the steps being taken to remedy it, and the prospects of that shortfall being reduced. In some cases the decision-maker might conclude that development plan policies should be given substantial or even full weight. Where the interpretation of a planning policy was truly justiciable, the court had to interpret it objectively, in accordance with the language used, and read as always in accordance with its proper context, meaning that interpretation should not be considered simply through the lens, or worse still prism, of whichever party happened to be disappointed by a particular planning decision, whether a developer, local planning authority or objector to a scheme (paras 60, 74, 80, 90, 97, 99, 102, 103, 107, 108, 110, 111).

(2) There was no merit in the argument that the inspector in the first appeal had taken into account an immaterial consideration. It was legitimate to take into account the presence or absence of a unique quality about a development’s benefits and if a decision-maker did so, it was a matter for him to determine the weight to be attached to it (paras 124, 125).

Per curiam. (i) The claimant sought to rely on the witness statement of a senior planner and development director employed by the claimant, which sought to analyse a substantial number of decision letters issued by planning inspectors, to support the submission that the alleged error in the two decision letters the subject of these challenges is prevalent. The Secretary of State did not file evidence in reply, submitting that these decisions were not the subject of challenges before the court and were irrelevant to the legal issues raised in these proceeding. Parties should not seek to file evidence of this kind in future challenges, whether they be a claimant or a defendant. The practice is objectionable for several reasons. First, costs are incurred unnecessarily, not only by a claimant but also by a defendant in having to consider whether to respond to the material. Second, court time may be taken up in considering the material needlessly. Third, a defendant may be placed in the awkward position of having to decide whether or not they should respond to the material, particularly if it contains material which is partly admissible and partly inadmissible, worse still if those two categories are intertwined. It should also be recalled that the general principle is that evidence in challenges under section 288 of the Town and Country Planning Act 1990 must be confined to the material before the decision-maker whose decision is under challenge. Even where written evidence filed in proceedings refers solely to relevant material, it should be borne in mind that witness statements and expert reports cannot make submissions to the court. It is generally not the function of a witness statement to provide a commentary on the documents in a trial bundle or to make points which are essentially matters for legal argument or submission (paras 57, 67, 68, 69, 70).

(ii) Neither the NPPF nor planning policy in general should be subjected to “excessive legalism” in legal challenges brought by any party disappointed by the outcome of a planning application or planning appeal. The Court of Appeal and the High Court have unequivocally and consistently discouraged such arguments (paras 114, 115).