The consolidation of planning policy into a single national framework has undoubtedly simplified the task of identifying the planning policies of relevance to a particular development proposal. However, the consequence of the Supreme Court’s decision in Tesco Stores v Dundee City Council [2012] UKSC 13 is that the correct interpretation of planning policy is ultimately a matter for the Courts. The case law has made clear that the approach in Tesco Stores applies equally to the NPPF (see R (on the application of Hunston Properties Limited) v Secretary of State for Communities and Local Government [2013] EWCA Civ 1610) and when considering a point of interpretation, the NPPF should be construed as a whole (see Bayliss v Secretary of State for Communities and Local Government [2013] EWHC 1612 at [18].)

In the last six months alone, there have been no less three challenges concerning the proper interpretation of the NPPF.

Paragraph 88 and “any other harm” to the Green Belt

In Redhill Aerodrome Ltd v Secretary of State for CLG and Tandridge DC [2014] EWHC 2476 (Admin) the High Court considered the meaning of “any other harm” in paragraph 88 of the NPPF.  Paragraph 88 provides as follows:

“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”

The Court held that “any other harm” in paragraph 88 meant only harm to the green belt. Patterson J held (at [56]) that “I have no difficulty in concluding that, in this case, it was not right to take the identified non Green Belt harms into account. The revised policy framework is considerably more directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, been a considerable policy shift. Where an individual material consideration is harmful but the degree of harm has not reached the level prescribed in the NPPF as to warrant refusal, in my judgment, it would be wrong to include that consideration as “any other harm””.

Paragraph 89 and “building”

In Lloyd v Secretary of State for CLG and Dacorum BC [2014] EWCA Civ 839 the Court of Appeal considered paragraph 89 of the NPPF which provides, in so far as material, as follows:

“A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are … the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces”.

The Court of Appeal held that on the proper construction of the NPPF the term “building” did not include a mobile home. The replacement of a mobile home with a building on a green belt site therefore amounted to inappropriate development. In reaching this conclusion the Court had regard both to the ordinary meaning of the word “building” and the context within this word was used in relevant statutory context and the NPPF. 

Paragraph 90 and “mineral extraction”

In Europa Oil & Gas Ltd v Secretary of State for CLG and Surrey CC [2014] EWCA Civ 825, the Court of Appeal considered the meaning of “mineral extraction” within paragraph 90 of the NPPF. The Court held that a proposed development which involved exploratory drilling for hydrocarbons in the green belt was “mineral extraction” for the purposes of the National Planning Policy Framework para.90 and a local development plan policy. The Court made the point (at [15]) that “on the face of it, the NPPF is a stand-alone document which should be interpreted within its own terms and (at [32]) “the interpretation to be given to “mineral extraction” in paragraph 90 has to take account both of the specific context and of other indicators within the NPPF itself”. Having regard to the provisions of the NPPF, the Court of Appeal concluded that explanatory drilling would be included within the definition of mineral extraction.

Validity of Ministerial Statement

The Government has also made efforts to clarify parts of the NPPF. For example, in a ministerial statement dated 1 July 2013, the Government set out that the single issue of unmet demand for housing was unlikely to outweigh harm to the green belt and constitute the very special circumstances justifying inappropriate development in the green belt

Whilst it may be thought that such a statement provides a gloss on the NPPF, in the recent case of Copas v SoS for CLG and Windsor and Maidenhead[2014] EWHC 2634 (Admin), Supperstone J held that the ministerial statement did not amount to a variation or extension of pre-existing planning policy, but rather simply clarified the meaning of the NPPF. Therefore, an inspector had correctly treated the ministerial statement as a material consideration in her decision to refuse planning permission for affordable housing in the green belt.

Delaney v Secretary of State for Communities and Local Government [2013] EWCA Civ 585

In this case the Court of Appeal addressed (i) whether it was a material factor in considering whether to grant temporary planning permission for a traveller site that the Council had, in breach of its statutory duty, failed to carry out an assessment of the accommodation needs of gypsies and travellers residing in its district and to prepare a strategy in respect of meeting that need;  and (ii) whether the Inspector determining the appeal had placed sufficient weight on the absence of such a strategy in consider whether to grant temporary planning permission.

Section 225 of the Housing Act 2004 requires every local authority when undertaking a review of its housing need under section 8 of the Housing Act 1985 to carry out an assessment of the accommodation needs of gypsies and travellers residing in their district. The Appellant, a person of traveller status who sought planning permission for a site in the Green Belt, argued that given the Council had failed to fulfil its statutory duty to review the accommodation needs of gypsies and travellers and prepare a strategy, this should be accorded substantial weight in considering whether to grant planning permission. It was argued that the Appellant should not be in a worse position because of the Council’s breach of statutory duty than if it had complied with it.

The Court of Appeal held that the Inspector had correctly taken into account the Council’s breach of duty and the consequences for the Appellant and had placed significant weight on the breach of statutory duty.  However, the Inspector had been entitled to hold that this matter did not outweigh other material considerations going against the grant of temporary planning permission in relation to a site in the green belt. The Court of Appeal concluded that the Inspector had weighed up the varying factors and clearly expressed his reasons as to why a further period of occupation of the site would perpetuate harm to the green belt for an unacceptable length of time and this was not outweighed by other material considerations.

Telford & Wrekin Borough Council (and others) v Secretary of State for Communities and Local Government (and others) [2013] EWHC 1638 (Admin)

This decision of the High Court addressed i) the correct interpretation of the sequential test policies contained in the National Planning Policy Framework (NPPF) and ii) the extent to which planning obligations agreed between a developer and local planning authority based on pooled costs met the test of necessity in regulation 122 of the CIL Regulations 2010.

A developer applied for planning permission to construct a food store at a site out of the town centre. Following non-determination of this application by the Council, planning permission was granted by an inspector on appeal. A rival developer had applied for planning permission to construct a food store on an alternative out of town site. The planning authority and rival developer challenged the grant of planning permission under section 288 of the Town and Country Planning Act 1990.

Interpretation of the sequential test

The principal ground of challenge was that the Inspector had erred in interpreting and applying the provisions of the NPPF relating to sequential assessment. Paragraphs 24 and 27 of the NPPF provide that local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing town centre and are not in accordance with an up to date local plan. The NPPF provides that preference is to be given to sites in the town centre over sites at the edge of town or out of town, and when considering edge of centre or out of centre proposals, preference should be given to sites that are well connected to the town centre. The Inspector concluded that neither of the competing sites (both of which were out of centre sites) had preference over the other and that customers in respect of both sites would be unlikely to walk into the town centre. The claimants argued that the application of the sequential test must always result in a finding that one site is sequentially superior to the other and the Inspector had erred in concluding that the sites were equivalent.

In addressing this ground of challenge Mr Justice Turner referred to the Supreme Court’s decision in Tesco Stores v Dundee City Council [2012] UKSC 13 which held that it was a matter for the courts to determine the correct interpretation of planning policies, although planning policy was not to be interpreted as if it were a statute. He held that the application of the sequential test did not require a judgment to be reached that one site was sequentially superior to the other and it was open to a decision maker to find that one or more sites were sequentially equal. First, there was nothing in the NPPF or guidance which precluded this result. Secondly, a decision maker retained some flexibility under the policy and there was no reason to interpret the policy in a narrow and prescriptive sense. Thirdly, there were circumstances in which it would be artificial for a decision maker to be compelled to declare one site the victor. Sequential preference was not simply a question of which site was geographically closer to the town centre but required an assessment of all relevant factors including accessibility (see [27] – [32]). There was therefore no basis for impugning the interpretation of the NPPF, nor was there any basis for criticising the application of the policy to the facts of the case.

Pooled costs and planning obligations

A planning obligation had been agreed between the developer and planning authority relating to off-site highway works which would be required as a result of the proposed development. These costs had been calculated by the planning authority by considering the need for highway works generated by all the planning applications before it at that time and distributing these costs between the different developments on a pro rata basis (having regard to the need for modification at particular highway junctions). The costs were therefore calculated on the basis that all the developments would be completed. The Inspector considered that the pooled costs did not reflect reality, but rather proceeded on a false basis given that both food stores would not be developed. Mr Justice Turner held that whilst the method of apportioning pooled costs between proposed developments could in an appropriate case satisfy the requirements of Regulation 122(a), on the facts of this case the Inspector was entitled to find that pooled costs apportioned to the developers did not reflect the reality of future development and in these circumstances the Inspector was entitled to conclude that she could not be satisfied that the contributions were necessary within the meaning of Regulation 122(a).

Jonathan Moffett of 11KBW was instructed by the Secretary of State.

Two judgments delivered this week address the relationship between the enforcement regime under the Town and County Planning Act 1990 and the requirements imposed on developers to provide environmental information and on local authorities to undertake an Environmental Impact Assessment (“EIA”). The cases address i) whether a local authority is required to commence enforcement action where an EIA development was not supported by the grant of planning permission and ii) whether immunity from enforcement action following a change of use in the absence of an environmental impact assessment is incompatible with EU law. Both questions were answered in the negative.

No duty to take enforcement action and effect of delays in providing an environmental statement

In R (Baker) v Bath and North East Somerset [2013] EWHC 946 (Admin) Kenneth Parker J held that a local planning authority was not under a duty to issue an enforcement notice wherever a development which required an EIA was unsupported by a grant of planning permission which had properly taken into account environmental information.

The claimant lived near a waste composting site which had been operated in breach of planning conditions and later without planning permission. An application for planning permission was made and following a screening opinion, the authority determined that the development required an EIA. Because the application related to EIA development, permission could not be granted without prior consideration of environment information (including an environmental statement) – see the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, regulation 3(2). An inadequate environmental statement was provided by the developer, following which the local authority gave the developer a number of months to produce an adequate statement of environmental information in order to avoid the issuing of an enforcement notice.  The claimant argued that on receipt of the secretary of state’s screening decision, the local authority had been legally obliged to issue an enforcement notice and further had been wrong to allow the developer further time to present an environmental statement.

Kenneth Parker J held that EU law principles did not impose a duty on the local authority to immediately issue an enforcement notice wherever there was EIA development unsupported by a grant of planning permission which had properly taken account of environmental information, holding that such a position was “extreme”. Citing the case of Ardagh Glass Ltd v Chester City Council [2010] EWCA Civ 172, he held that the grant of retrospective planning permission in respect of an EIA development was permissible if there were exceptional circumstances, which the judge interpreted to mean that a particularly compelling case must be made out for retrospective permission. This was inconsistent with the alleged duty to commence enforcement action.

In relation to the delay in providing environmental information, it was held that allowing the developer a period of ten months to present an adequate environmental statement was close to running the risk of being incompatible with EU. However, in circumstances where there was a real probability that the developer would present a compliant statement by the new deadline the local authority had reached a fair, reasonable and proportionate decision.

Sufficiency of environmental statement and immunity from enforcement action

In R(Evans) v Basingstoke & Deane Borough Council [2013] EWHC 899 (Admin), Stadlen J held that immunity from enforcement action conferred by s.171B of the Town and Country Planning Act 1990 was not incompatible with the requirement in Directive 85/337, Article 2(1) which required a change of use at a site which had significant environmental effects to be subject to  an EIA.

The claimant challenged the grant of planning of planning permission for the development and expansion of a watercress farm and salad packaging plant within an AONB on the basis that it would lead to increased pollution and road use. The claimant argued, inter alia, that i) the authority was in breach of Directive 85/337 and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 by failing properly to obtain environmental impact information and  ii) statutory immunity from enforcement action conferred by the Town and Country Planning Act 1990 s.171B was incompatible with art.2(1) of the Directive and ought to be disapplied.

The Court relied on the principle established in R (on the application of Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin) that the adequacy of an environmental statement was a matter for the Council subject to review on Wednesbury principles. Stadlen J held that the local authority had not been Wednesbury unreasonable in concluding that an environmental statement and an addendum were adequate and satisfied the requirements of EU law – the adequacy of the environmental statement was for the local authority, not the court, to determine. Further, it was unrealistic to expect an environmental statement to contain “full information” and given the entitlement to request further information, it would be rare for an assessment to be classed as so deficient that it fell short of constituting a proper assessment.

Further, the court rejected the claimants’ argument that the local authority had misdirected itself in concluding that the site’s industrial element was likely to be immune from enforcement by virtue of acquired immunity under s.171B. The claimant argued that if the Council had served an enforcement notice within the ten year limitation period stating that the existing use was a breach of planning control, the developer could have appealed to the Secretary of State on the ground that planning permission should be granted for the use.  Such an appeal would have given rise to a deemed application for planning permission under section 177(5) which the Secretary of State would have had to decide, requiring the Secretary of State to determine whether the existing use was development requiring an EIA. To do that, the Secretary of State would have made a screening direction, and if the use was likely to give rise to a significant environmental effect, an environmental statement would need to be produced. However, the effect of immunity under section 171B is that none of these steps may be required. However, the Court held that s.171B was not incompatible with the obligation in art.2(1) of the Directive to ensure that a change of use at the site should be subject to an environmental impact assessment. Section 171B was a procedural rule rather than a substantive rule and satisfied the principle of equivalence and effectiveness, did not make reliance on the Directive impossible or excessively difficult, and was reasonable and justifiable by reference to the principle of legal certainty.