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30/10/2018

Legal landscape: NPPF2 - sea of change?

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Friends of the Earth’s challenge to the revised NPPF creates a knotty legal problem, says Paul Wakefield – what weight should be given to the new policy document should the challenge succeed?

Friends of the Earth (FoE) recently sought to bring a challenge against the government over its failure to carry out a strategic environmental assessment (SEA) before the publication of the updated National Planning Policy Framework (NPPF2) in July.

Through the challenge, FoE hopes to force policymakers to carry out a SEA, re-consult the public and then modify NPPF2 based on the findings.

Although it is not disputed that the government failed to carry out an SEA before publication of the original NPPF (NPPF1), the court must now consider whether they should have done one before publication of NPPF2.

While the case itself may be arguable, the question that it raises for practitioners now is: how should NPPF2 be treated while the challenge is progressed?

In accordance with paragraph 212 of NPPF2: “The policies in [the] Framework are material considerations which should be taken into account in dealing with applications from the day of its publication.”

The document then goes on to state in paragraph 213 that: “However, existing policies should not be considered out of date simply because they were adopted or made prior to the publication of [the] Framework. Due weight should be given to them, according to their degree of consistency with [the] Framework (the closer the policies in the plan to the policies in [the] Framework, the greater the weight that may be given).”

Both section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990 made it clear that applications for planning permission should be determined in accordance with the development plan, unless material considerations indicate otherwise. While the National Planning Policy Framework is designed to inform and direct the plan-making process, it is only a material consideration.

For now, while the FoE challenge is progressed, the NPPF2 remains a material consideration in the determination of planning applications and weight should be afforded accordingly.

What is perhaps less clear is what happens if the FoE challenge is successful.  

“Practitioners will no doubt be arguing that where there are discrepancies between the two frameworks, greater weight should be given to the policies of NPPF2”

In that scenario, if NPPF2 were declared unlawful, decision-makers would be required to fall back on the previous version, NPPF1. However, with government’s stated aims and intended changes being set out in NPPF2, practitioners will no doubt be arguing that where there are discrepancies between the two frameworks, greater weight should be given to the policies of NPPF2, which represents the direction of travel of government policy.

Ultimately, should the FoE challenge succeed, it would appear that while an SEA is undertaken, arguments will focus on the debate surrounding the amount of weight to be afforded to the policies of NPPF2, which will presumably be given a status akin to that of an emerging local plan – albeit noting that it does not form part of the development plan.

Of course, this is not a new position for central government, as a similar situation occurred under the previous coalition government and its protracted abolition of regional spatial strategies. At that time, attempts to wipe out regional planning policies overnight were frustrated owing to the failure to carry out an SEA, but ultimately government found a way to rid itself of regional planning policies by changing legislation.

It remains to be seen whether, should FOE succeed, government will ultimately make any changes to NPPF2. Given the rather scant regard seemingly given to consultation responses prior to publication of the final version of NPPF2, it seems unlikely that the government will be swayed from its current course, even if FoE manages to place a barrier in the road.

Until the courts finish debating the matter it remains to be seen whether the full weight that NPPF2 now enjoys will change; but history suggests that government will find a way to bring forward the policies which they want, SEA or not. 

Paul Wakefield LARTPI is a planning team partner at Shakespeare Martineau

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