The NPPF – what does it really mean?

September 12th, 2014 by Heather Emmerson

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.

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