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02/11/2017

Legal landscape: NPPF could be more user-friendly

NPPF

Excessive legalism or poor drafting: Does the NPPF constitute a barrier to planning?

In April 2011, Eric Pickles, as the Secretary of State for Communities and Local Government, announced that the intention with the planning system was that “you should be able to work out planning issues without needing to seek advice from leading counsel” and thus, planning silks would “have to think twice about that third week in Tuscany or whether to buy the Lamborghini after all”.

The following year the government introduced the National Planning Policy Framework (NPPF).

Pickles’ sentiment is echoed among the judiciary. Indeed, in East Staffordshire v SSCLG 1, Lord Justice Lindblom similarly said, “I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system”.

This demonstrates a clear mandate from the court that planning matters ought to be approached in a straightforward manner. While that is an admirable ambition, in reality the NPPF makes this difficult. A perfect example of this is illustrated with the “presumption in favour of sustainable development”.

Since the introduction of the NPPF, the presumption has been considered and applied within countless officers’ reports and appeal decisions. However, what the presumption actually means has remained unclear.

"Two examples of recent case law illustrate the point that the NPPF is drafted in such a way that its interpretation remains unclear"

The presumption is described as a golden thread running throughout the NPPF. Indeed, there are a number of references to it throughout the NPPF. Consequently, in Wychavon DC v SSCLG 2, Justice Cranston found that the presumption applied throughout the framework. A number of judgments followed this in 2016/2017, culminating in the Court of Appeal’s judgment in East Staffordshire. The Court of Appeal rejected Justice Coulson’s interpretation of the presumption and found that it only applied within the limited context of paragraph 14 of the NPPF. Accordingly, the presumption is only engaged where a development proposal either: (1) accords with the development plan; or (2) the development plan is absent, silent or relevant policies are out of date and the adverse impacts do not significantly and demonstrably outweigh the benefits.

There is no free-standing presumption in favour of sustainable development beyond these two situations.

A hindrance or a help?

Consequently, the law is currently settled as to what the presumption means. But the fact that the courts have reached inconsistent conclusions as to what the presumption is demonstrates that the NPPF gives rise to uncertainties. This is compounded by the fact that, despite the importance of the presumption, its interpretation has only just been settled – five years since the NPPF was introduced.

Similarly, the inter-relationship between paragraphs 14 and 49 of the NPPF has plagued the Planning Court, owing to their meaning being unclear.

Indeed, contrary to Pickles’ ambition, undoubtedly a fleet of Lamborghinis could have been purchased through the legal costs associated with the litigation on this matter, which culminated in the Supreme Court’s judgment in Suffolk Coastal DC v Hopkins Homes [2016] EWCA Civ 168. There, the Supreme Court held that, put simply, where a local planning authority is unable to demonstrate a five-year housing land supply, the tilted balance within NPPF 14 is engaged. The Supreme Court’s judgment was reached contrary to the decisions of various judges previously.

"The inter-relationship between paragraphs 14 and 49 of the NPPF has plagued the Planning Court, owing to their meaning being unclear"

These two examples of recent case law illustrate the point that the NPPF is drafted in such a way that its interpretation remains unclear.

So while it is easy to criticise lawyers for indulging in strained interpretations of policy (which certainly occurs), consideration must be given as to whether the source material is part of the problem.

The NPPF was drafted to be accessible to the public, but the plethora of cases dealing with fundamental points about its interpretation suggests that specificity of statute was sacrificed to make the NPPF accessible. Regrettably, it would seem that as a result the NPPF can often act as a hindrance within the planning system, owing to its application remaining uncertain on so many points.

Killian Garvey is a barrister with King's Chambers and specialises in planning and environmental law

Photo | iStock

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