Appealing when the development plan is out of date
Establishing that the policies most important for determining an application are out of date is the appellant's job. The evidence chain, the balance that follows, and the council responses that beat it.
An out of date development plan appeal is won on arithmetic and lost on assumption. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires applications to be determined in accordance with the development plan unless material considerations indicate otherwise, and that duty does not disappear when a plan ages. What changes is the weight given to particular policies, and the balance the National Planning Policy Framework asks the decision maker to apply when the policies most important for determining the application are out of date. Establishing that the policies are out of date is the appellant's job, and it needs evidence rather than an observation that the plan was adopted a long time ago.
What makes relevant policies out of date
Age alone is not the test. A plan adopted in 2012 may contain a design policy that remains entirely consistent with current national policy, and an inspector will apply it with full weight.
Policies become out of date in three broad ways. They can be time-expired, where the plan period has ended or the housing requirement has run out. They can be inconsistent with the Framework, in which case weight reduces in proportion to the inconsistency. Or they can be overtaken by events, where the evidence underpinning them no longer reflects the position on the ground.
The Framework also treats certain policies as out of date automatically in specified circumstances relating to housing supply and delivery. Those are the ones with a published, checkable trigger, and they are where most appeals are run.
Identify the policies most important for determining the application first. That phrase does work: the question is not whether some policy somewhere in the plan is dated, but whether the ones that actually decide this application are.
Housing land supply and delivery evidence
Two mechanisms do most of the heavy lifting.
The first is the five year housing land supply. Where an authority cannot demonstrate a supply of deliverable sites against its requirement, including the applicable buffer, the relevant policies are treated as out of date. The definition of deliverable in the Framework glossary is the battleground, because it governs which sites count.
The second is the Housing Delivery Test, published annually, which compares homes delivered against homes required over a rolling three year period. Measurements below the stated thresholds bring consequences ranging from an action plan to the presumption applying.
| Evidence | Where it comes from | What to check |
|---|---|---|
| Five year supply position | The authority's own published statement | Base date, requirement used, buffer applied, site by site deliverability |
| Housing Delivery Test | Annual national measurement | Which measurement year applies at the date of the decision |
| Plan age and period | The adopted plan itself | End of plan period, whether the requirement is time-expired |
| Emerging plan stage | Examination documents | Stage reached, unresolved objections, consistency with national policy |
Attack the supply position site by site. A trajectory that assumes delivery on a site with no permission, no developer and an unresolved highways objection is vulnerable, and demonstrating that on three or four large sites can move the position below five years on its own.
How the balance changes
Where the relevant policies are out of date, the Framework's presumption in favour of sustainable development applies. In the August 2026 edition the Framework is organised by policy codes rather than the paragraph numbers used in the December 2023 and December 2024 editions, so cite the current edition and its policy code rather than copying a paragraph number from an older appeal decision.
The substance of the test has been stable across editions. Permission should be granted unless policies in the Framework that protect areas or assets of particular importance provide a clear reason for refusing, or unless the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits when assessed against the Framework as a whole.
Two phrases carry the weight. Clear reason for refusing is a gateway, and if it is engaged the balance never runs. Significantly and demonstrably sets a higher bar than ordinary harm, which is why the balance is called tilted.
What it does not do is dispense with the development plan. The Supreme Court made that plain in Hopkins Homes in 2017: the statutory duty under section 38(6) remains, and the Framework is a material consideration operating within it rather than replacing it.
Policies that stay up to date regardless
The gateway protects a defined list of designations and assets, and where one is engaged the appeal turns on the specific policy test rather than on the balance.
Habitats sites and sites of special scientific interest, land designated as Green Belt, Local Green Space, National Landscapes and National Parks, irreplaceable habitats including ancient woodland, designated heritage assets, and areas at risk of flooding or coastal change. Each has its own test, and each of those tests is unaffected by the age of the local plan.
Heritage is the one appellants most often misread, because the statutory duties under the Planning (Listed Buildings and Conservation Areas) Act 1990 apply whatever the state of the plan. The article on heritage harm refusals and the statutory balance sets out how that works.
Evidence the appellant should supply
Build the case as a short, documented chain rather than as advocacy.
- Identify the policies most important for determining the application, naming each one.
- Show why each is out of date, with the relevant trigger or the inconsistency with national policy set out.
- Produce the supply or delivery evidence, with the authority's own published figures as the starting point and your challenge to them as the second layer.
- State which Framework policies protecting particular areas or assets are engaged, and why none of them provides a clear reason for refusal.
- Set out the benefits, quantified where they can be, and the adverse impacts, and show why the latter do not significantly and demonstrably outweigh the former.
Quantify the benefits properly. Market and affordable homes with numbers, construction jobs with a stated method, levy and council tax receipts, biodiversity gain above the statutory minimum. Vague social and economic benefits attract vague weight.
Council responses that defeat the argument
Three responses tend to work, and it is worth anticipating all of them.
The authority publishes an updated supply statement with a later base date showing five years or more. Supply positions change, and the relevant date is the date of the decision, not the date you lodged.
The plan is adopted during the appeal. A newly adopted plan resets the position and can turn a strong appeal into a weak one between the statement of case and the decision.
The authority accepts the tilted balance and argues it still loses. This is the most dangerous response, because it concedes the argument you spent most of your evidence on and moves the fight to harm. Where the officer's report has already recommended refusal against the balance, the dynamic is different again, as discussed in committee refusals against officer advice and appeal prospects.
The risk of relying on the balance alone
An appeal that argues only that the plan is out of date, without demonstrating that the scheme is acceptable on its merits, invites an inspector to agree with the first point and dismiss anyway.
Run the development plan case in parallel. Show compliance with the policies that remain up to date, show the design is good, show the harm is limited. Then the balance becomes the second argument rather than the only one.
Set that structure out explicitly in the planning statement at application stage, so the appeal case is a continuation rather than a rewrite. Enter your postcode on PlanScope to draft the policy sections of that statement.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. Appeal decisions are indicative of how inspectors have approached an issue rather than binding precedent.
PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Does an old local plan automatically mean policies are out of date?
No. Age alone is not the test. A policy from an older plan that remains consistent with national policy carries full weight. Policies become out of date where they are time-expired, where they are inconsistent with the Framework, where the evidence behind them has been overtaken, or where a specified housing supply or delivery trigger applies.
What is the tilted balance?
The presumption in favour of sustainable development that applies where the policies most important for determining an application are out of date. Permission should be granted unless Framework policies protecting particular areas or assets give a clear reason for refusal, or unless adverse impacts would significantly and demonstrably outweigh the benefits assessed against the Framework as a whole.
Which policies are unaffected by an out of date plan?
Framework policies protecting habitats sites, sites of special scientific interest, Green Belt, Local Green Space, National Landscapes and National Parks, irreplaceable habitats, designated heritage assets, and areas at risk of flooding or coastal change. Where one of these provides a clear reason for refusal, the balance never runs and the specific policy test decides the appeal.
How do I challenge a five year housing land supply position?
Start with the authority's own published statement, then test it site by site against the Framework definition of deliverable. Sites without permission, without a developer or with unresolved technical objections are the vulnerable ones. Removing three or four large sites from the trajectory can move the position below five years without any other argument.
Can the council change the position during the appeal?
Yes, and it often does. The relevant date is the date of the decision rather than the date the appeal was lodged, so an updated supply statement with a later base date, or adoption of a new local plan during the appeal, can reset the position entirely. Build the case so it does not rest on the balance alone.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.