Refusal where the development plan is out of date

The argument that the policies most important for determining an application are out of date is the most powerful single move available on appeal, and the most frequently mishandled. It is powerful because it shifts the statutory starting point: instead of asking whether the proposal accords with the plan, the inspector applies the presumption in favour of sustainable development and weighs harm against benefit under the NPPF (August 2026 edition) as a whole. It is mishandled because appellants assert it rather than prove it, and because they forget that the presumption can be disapplied.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 still applies. The development plan remains the starting point. What changes is the weight the plan's relevant policies carry and the balance applied where they are out of date.

What makes a policy out of date

Three routes, which do different work and need different evidence.

The first is inconsistency with national policy. A policy that was written against an earlier framework and conflicts with current national policy is out of date to the extent of the conflict. This is a legal and policy reading exercise: set the policy wording against the current national wording and identify the divergence. Age alone does not do it. An old plan with policies that still align with national policy is not out of date, and the Framework has long made clear that plans do not become out of date simply by reaching a certain age.

The second is housing land supply. Where the authority cannot demonstrate the required supply of deliverable housing sites against its requirement, measured and buffered as the Framework specifies, the policies most important for determining applications for housing are treated as out of date. Proving this requires engaging with the authority's own five year supply statement line by line: the base date, the requirement figure, the buffer applied, and the deliverability of each site relied on. The deliverability test is where the argument is actually won, because sites without planning permission, without a developer, or dependent on infrastructure not yet funded are vulnerable.

The third is housing delivery. Where past delivery measured against the requirement falls below the threshold the Framework sets, the same consequence follows. This is published annually and is the easiest of the three to establish, because the figure is a government publication rather than a matter of argument.

Separately, policies can simply be given reduced weight on the facts without the presumption being engaged at all. That is a different and more modest argument, and sometimes the honest one.

Identifying the most important policies for the decision

This is the step appellants skip, and it is where inspectors most often take a different view.

The exercise is to identify the basket of policies most important for determining this application, assess whether that basket taken as a whole is out of date, and then reach a conclusion. It is not enough to find one out-of-date policy in a plan containing twenty relevant ones. Nor is it right to treat the whole plan as out of date because the supply position has failed.

So the submission should set out, explicitly, a list. For a housing scheme in a village, the basket typically includes the settlement boundary or spatial strategy policy, the housing supply policy, the countryside protection policy, the design policy, the amenity policy, and any landscape or heritage policy engaged by the site. Then say which of those are out of date, why, and what the position is for the basket as a whole.

The answer is frequently that the policies restricting the location of development are out of date while the design, amenity and landscape policies are not. That is a perfectly workable conclusion, and it tells you what the appeal is really about: the scheme's intrinsic quality rather than its location.

The balance that applies when they are out of date

Once the presumption is engaged for a scheme that is not a plan-making decision, permission should be granted unless the adverse effects of doing so would significantly and demonstrably outweigh the benefits, assessed against the policies in the Framework taken as a whole.

Three features of that test repay attention.

The threshold is asymmetric. The harm has to clear a higher bar than simple imbalance against the benefits. An inspector who finds harm and benefit roughly in equilibrium should grant.

Conflict with an out-of-date plan policy is still conflict. It carries reduced weight, but the breach does not disappear, and inspectors routinely record it before applying the balance.

The benefits side needs populating with evidence rather than assertion. Housing delivery against a demonstrated shortfall, affordable housing numbers with tenure, economic benefits during construction stated as a methodology rather than a number plucked from the air, biodiversity net gain above the statutory minimum, specific infrastructure delivered. Vague social and economic benefits attract little weight.

Housing land supply and delivery evidence

If the argument rests on supply, the appeal needs the supply case properly built, and that is a quantity surveying exercise as much as a planning one.

Expect the authority to come back on each line. Expect also that the supply position may change between the appeal being lodged and the hearing, because a new statement may be published in that window. Build the case so that it survives a modest movement in the headline figure.

Limits on the argument in designated areas

The presumption is not a universal override, and this is where appeals founder.

Where the scheme would conflict with national policy protecting a specific asset or area, the Framework provides that there is a clear reason for refusing it, and the tilted balance does not deliver permission. The categories include land designated as Green Belt, National Landscapes and National Parks, designated heritage assets, areas at risk of flooding where the sequential approach is not satisfied, sites of special scientific interest, irreplaceable habitats and land of similar protection.

Two points practitioners need to hold firm on.

Statutory duties survive the presumption entirely. The duty to have special regard to the desirability of preserving a listed building and its setting under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, and the duty to pay special attention to the character and appearance of a conservation area under section 72, apply whatever the state of the development plan. So does the habitats regulations assessment regime.

And a protective policy in the local plan that is consistent with national protection is not out of date merely because the authority's housing supply has failed. The supply failure engages the presumption; it does not neutralise the designation.

How authorities respond to the point

The authority's answers are predictable, so prepare for them.

They will contest the basket, arguing that the policies most important for the decision are the landscape, design or heritage policies rather than the supply policies, and that those are up to date. They will produce an updated supply statement. They will point to an emerging plan at an advanced stage and ask for weight to be given to it, which the Framework allows depending on the stage reached, the extent of unresolved objections and the degree of consistency with national policy. They will argue that even under the tilted balance the harm clears the threshold.

They may also argue prematurity, which succeeds only rarely and generally where a plan is at a very late stage and the proposal is so substantial that granting permission would predetermine decisions about the scale and location of development that should properly be taken through the plan.

Presenting the argument at appeal

Structure the statement of case so the inspector can follow the logic without reconstructing it.

1. State the statutory starting point and identify the relevant development plan policies.
2. Set out the basket of policies most important for determining the application, as a list.
3. Establish the out-of-date trigger with evidence: the inconsistency, the supply calculation, or the delivery figure.
4. Reach a conclusion on the basket as a whole.
5. Address the disapplication categories explicitly, including the ones that do not apply, so the inspector can see you have checked.
6. Set out the benefits with evidence and the harms candidly.
7. Apply the balance and state the conclusion.

Candour on harm is worth more than it costs. An appellant who concedes moderate landscape harm and argues it is outweighed reads as credible. One who argues there is no harm at all invites the inspector to find some.

The supporting Planning Statement at application stage should make the same argument, because an authority that refuses in the face of a properly evidenced supply case is exposed on costs if its own position was unreasonable. The report index covers the technical documents the benefits case usually relies on, and related appeal reading includes using appeal decisions in a planning application and committee refusals against officer advice and appeal prospects.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.