Thursday, 6 November 2014
Interpreting the National Planning Policy Framework
There has been quite a lot of interest in the case of Redhill Aerodrome v. SSCLG since judgment was given in the High Court in July ( EWHC 2476 (Admin)). That judgment has now been overturned by the Court of Appeal in a decision delivered on 9 October, with reasons handed down on 24 October -  EWCA Civ 1386.
Most commentators have concentrated on the court’s interpretation of Green Belt policy, as set out in the NPPF compared with the former PPG2, but the implications of the Court of Appeal’s judgment would appear to go rather wider than this and may be applicable to the interpretation of the NPPF generally, as compared with the way in which ministerial policy on a number of topics was explained in the various policy guidance that was cancelled when the NPPF was published.
The dispute between the parties centred on these two paragraphs :
“87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. 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.” [emphasis added by the Court]
The question which arose for determination by the court was whether this formulation of Green Belt policy, which differs in its wording from the corresponding ministerial advice formerly set out in PPG2, represents a deliberate change of approach on the part of the government, or whether it is no more than a slightly different way of expressing the same policy without thereby intending any change of policy.
The dispute here focused on the meaning and interpretation of the phrase “any other harm”. The meaning of these words in paragraph 3.2 of PPG2 was considered by Frances Patterson QC (sitting as a Deputy High Court Judge – she has more recently been appointed to the bench) in R (River Club) v SSCLG  EWHC 2674 (Admin),  JPL 584. The claimant in that case had submitted that the “other harm” referred to in the third sentence of paragraph 3.2 meant harm to the purposes or objectives of the Green Belt, so that as a matter of law “any other harm” was confined to Green Belt harm. This submission was rejected. There was a requirement to consider the development as a whole to evaluate the harm that flowed from its being inappropriate (by definition) in the Green Belt, together with any other harm that the development may cause, in order to enable a clear identification of harm against which the benefits of the development can be weighed and on that basis to conclude whether very special circumstances exist (as required by ministerial policy) so as to warrant the grant of planning permission.
The Deputy Judge noted that there were no qualifying words within paragraph 3.2 of PPG2 in relation to the phrase “and any other harm”. Inappropriate development, by definition, causes harm to the purposes of the green belt and may cause harm to the objectives of the green belt also. “Any other harm”, she held, must therefore refer to some other harm than that which is caused through the development being inappropriate. It could refer to harm in the Green Belt context, therefore, but need not necessarily do so. Accordingly, she held that “any other harm” in paragraph 3.2 was to be given its plain and ordinary meaning – it referred to harm which is identified and which is additional to harm caused through the development being inappropriate. Consequently, she rejected the argument that the phrase was constrained so as to apply to harm to the Green Belt only.
The Redhill Aerodrome case came before the same judge (now Patterson J). She accepted the claimant’s submission that the policy matrix is now different, in that all of planning policy is contained within the NPPF which is to be read and interpreted as a whole. For each of the individual considerations a threshold is set which, when it is reached or exceeded, warrants refusal. It is for the decision maker to determine whether the individual impact attains the threshold that warrants refusal as set out in the NPPF. That is a matter of planning judgement and will clearly vary on a case by case basis.
Here, she continued, the individual non-Green Belt harms did not reach the individual threshold for refusal as defined by the NPPF. Was it right then to take them into account either individually or as part of the cumulative Green Belt harm assessments? On an individual basis, given the clear guidance given in the NPPF, her ladyship had 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, she found, is considerably more directive to decision makers than the previous advice in the PPGs and PPSs. There has, in that regard, she said, 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 her judgment it would be wrong to include that consideration as “any other harm”.
The learned judge went on to consider whether individual considerations can be considered together as part of a cumulative consideration of harm even though individually the evaluation of harm is set at a lower level than prescribed for refusal in the NPPF. In her judgement, she said, it would not be right to do so. That is because the Framework is precisely as it says - a framework for clear decision making. It is a re-writing of planning policy to enable that objective to be delivered. It has no words that permit of a residual cumulative approach in the Green Belt when each of the harms identified against a proposal is at a lesser level than would be required for refusal on an individual basis. Without such wording, to permit a combination of cumulative adverse impacts at a lesser level than prescribed for individual impacts to go into the evaluation of harm of a Green Belt proposal seemed to her to be the antithesis of the current policy. It would re-introduce a possibility of cumulative harm which the NPPF does not provide for. It is clear, she felt, that the NPPF does contemplate findings of residual cumulative harm in certain circumstances, as is evident in paragraph 32, where it deals with the residual cumulative impact of transport considerations. However, such phraseology does not appear in the Green Belt part of the NPPF.
Pausing there, I have to say that I have considerable sympathy for Patterson J’s view on this point. I have pointed out on several occasions in this blog that the language used in the NPPF seems in various places to differ sufficiently from the wording of the former policy advice which it has replaced that it could justifiably be concluded that (whether or not it was actually intended to do so) it has brought about identifiable changes of ministerial policy. Several cases that have come before the courts since the NPPF was published seem to support this view, such as Europa Oil and Gas Limited v. SSCLG  EWHC 2643 (Admin) and Fordent Holdings Ltd v SSCLG  EWHC 2844 (Admin) (reported here on Friday, 1 November 2013 - Inappropriate development in the Green Belt), and also R (Embleton PC) v. Northumberland CC  EWHC 3631 (Admin), to which I drew attention on Tuesday, 21 October 2014. (See Agricultural dwellings - the operational need test ).
Notwithstanding the apparent changes of policy which have (perhaps inadvertently) been effected by the NPPF, Sullivan LJ, in giving the leading judgment in the Court of Appeal, pointed out that excluding non-Green Belt harm from “any other harm” in the second sentence of paragraph 88 of the NPPF would make it less difficult for applicants and appellants to obtain planning permission for inappropriate development in the Green Belt, because the task of establishing “very special circumstances”, while never easy, would be made less difficult. All of the considerations in favour of granting permission would now be weighed against only some, rather than all, of the planning harm that would be caused by an inappropriate development.
Most significantly, he added that if it had been the Government’s intention to make such a significant change to Green Belt policy in the NPPF, one would have expected that there would have been a clear statement to that effect. There has been no such statement. In his lordship’s judgment, all of the indications are to the contrary. He cited three examples:
(1) While there have been some detailed changes to Green Belt policy in the NPPF, protecting the Green Belt remains one of the Core planning principles, the fundamental aim of Green Belt Policy to prevent urban sprawl by keeping land open, the essential characteristics of Green Belts, and the five purposes that they serve, all remain unchanged. By contrast with paragraph 86 of the NPPF, which does change the policy approach to the inclusion of villages within the Green Belt, paragraph 87 emphasises the continuation of previous Green Belt policy (in PPG2) in respect of inappropriate development: “As with previous Green Belt policy.”
(2) The Impact Assessment in respect of the NPPF published by DCLG in July 2012 said that “The government strongly supports the Green Belt and does not intend to change the central policy that inappropriate development in the Green Belt should not be allowed.” Under the sub-heading “Policy Changes”, the Impact Assessment said that “Core Green Belt protection will remain in place.” It then identified four proposed “minor changes to the detail of current policy” which would resolve technical issues, but not harm the key purpose of the Green Belt, “as in all cases the test to preserve the openness and purposes of including land in the Green Belt will be maintained.” On the face of it, paragraphs 87 and 88 of the NPPF would appear to constitute the “central policy” which the Government did not intend to change.
(3) That there was no intention to change this aspect of Green Belt policy is confirmed by the Inspector’s statement in the Redhill Aerodrome appeal decision that the River Club approach to “any other harm” in the balancing exercise is reflected in decisions by the Secretary of State since the publication of the NPPF. The court was not referred to any decision in which a different approach has been taken to “any other harm” since the publication of the NPPF.
On the other hand, Sullivan LJ accepted that the NPPF means what it says, and not what the Secretary of State would like it to mean. Nonetheless, he said, if the NPPF has effected this change in Green Belt policy it is clear that it has done so unintentionally. The claimant (the respondent in the Court of Appeal) did not submit that there was any material difference between paragraphs 3.1 and 3.2 of PPG2 and paragraphs 87 and 88 of the NPPF. The text of the policy has been reorganised, but all of its essential characteristics remain the same. It had been submitted that the change in policy was to be inferred, not from the wording of paragraphs 87 and 88, but from the other policies in the NPPF which “wrapped around” Green Belt policy, and which were, it was submitted, very different in some respects from previous policies in the earlier policy documents which were replaced by the NPPF. At the heart of the claimant’s case was “Context, context, context.”
It is true, his lordship accepted, that the “policy matrix” has changed in that the NPPF has, in the words of the Ministerial foreword, replaced “over a thousand pages with around fifty, written simply and clearly.” Views may differ as to whether simplicity and clarity have always been achieved, but the policies are certainly shorter. There have been changes to some of the non-Green Belt policies, and there have also been changes to detailed aspects of Green Belt policy, not all of which were identified in the Impact Assessment (Europa Oil and Gas being one example).
However, Sullivan LJ did not accept the premise which underlay the claimant’s case, as Patterson J had done, that the other policies “wrapping around” the Green Belt policy in paragraphs 87 and 88 of the Framework are “very different” from previous national policy, or that, as Patterson J put it, there has been “a considerable policy shift”.
Although this case was primarily focused the interpretation of “any other harm” in the Green Belt context, the Court of Appeal did accept that there are certain respects in which some other details of ministerial policy have been changed by the NPPF. Nevertheless, Sullivan LJ suggested that if it had been the Government’s intention to make any significant changes to policy in the NPPF, one would have expected that there would have been a clear statement to that effect. He accepted, on the other hand, that the NPPF means what it says, and not what the Secretary of State would like it to mean. This judgment therefore seems to accept the possibility that some minor changes to ministerial policy may have been effected by the NPPF unintentionally.
This judgment therefore still leaves an element of uncertainty over the correct interpretation of certain paragraphs of the NPPF, but it would seem that if a particular paragraph of the NPPF appears on the face of it to effect a significant change of policy, this in itself should indicate that no such change of policy was in fact intended, without a clear statement on the part of ministers of their intention to make such a policy change. In cases of this sort, the wording of the NPPF should be taken to be no more than a restatement of previous policy, albeit in slightly different language. The only problem with this approach to the interpretation of the NPPF is that it requires a knowledge of, and reference to, the relevant PPGs or PPSs which the NPPF was intended to replace in order to construe the changed language of the NPPF correctly, which would seem to undermine the intention of publishing the NPPF in the first place.
One other implication of the Court of Appeal decision in Redhill Aerodrome is that one or two decisions that have proceeded on the basis of changes of policy that have apparently been brought about by the NPPF may be open to question. In particular, it seems to me that R (Embleton PC) v. Northumberland CC (which I discussed recently – see above) may have been wrongly decided. The judge was persuaded in that case that the test of operational need for a proposed agricultural dwelling under paragraph 55 of NPPF is different from, and much less prescriptive than, the test under Annex A of PPS7. Applying Sullivan LJ’s approach to this issue, there would appear to be no indication that what would amount to a fairly significant shift in ministerial policy on a matter of substance was intended here, and so (contrary to the court’s decision in Embleton PC), the conclusion must be that an objective test substantially similar to the test laid down by Annex A of PPS7 must still be applied, notwithstanding the apparently less demanding requirement expressed by paragraph 55 of the NPPF.
I always said that it was folly for ministers to jettison the well established and clearly understood policy advice set out in PPGs and PPSs, and that the attempt to boil down statements of ministerial planning policy to a single document that was intended to comprise no more than 50 pages would lead to difficulty and uncertainty, and resulting litigation. So it has proved, and cases of which Embleton PC and Redhill Aerodrome are only a sample will continue to trouble the courts for some time to come, until or unless a future Secretary of State recognises that a more complete statement of ministerial planning policy, substantially in the form of the cancelled PPGs and PPSs, is the only way of resolving the problem.
© MARTIN H GOODALL