Monday, 9 April 2018

Isolated houses in the countryside

Readers will recall that I deferred commenting on this issue until the case of Braintree BC v SSCLG had been to the Court of Appeal. The appeal was heard on 14 March, and judgment was handed down on the 28th - [2018] EWCA Civ 610. The judgment of the High Court rejecting the LPA’s challenge to an inspector’s appeal decision was upheld, although the Court of Appeal’s reasons differed slightly from those given by Mrs Justice Lang at first instance - [2017] EWHC 2743 (Admin). The case turned on the interpretation of ministerial guidance in paragraph 55 of the NPPF, which advises that “local planning authorities should avoid new isolated homes in the countryside” unless there are special circumstances (of which examples are cited in that paragraph). The point for the court was therefore a short one, in relation to the use of the word “isolated” in this context.

In rejecting the original planning application, the LPA had made the point that, in accordance with paragraph 55, housing in rural areas should be located where it will enhance or maintain the vitality of rural communities. The site in this case, the LPA said, is located in the countryside beyond any defined settlement boundaries and in a location where there are limited facilities, amenities, public transport links and employment opportunities. They asserted that the proposal would introduce new housing development beyond the defined settlement limits and would be contrary to the objectives of securing sustainable patterns of development and the protection of the character of the countryside. Development at this location, they said, would undoubtedly place reliance on travel by car.

In an appeal against the refusal of planning permission, the Inspector listed among the four principal issues “…….. whether the appeal proposal constitutes sustainable development in the countryside”. On this issue, the Inspector concluded: “Accessibility to services, facilities and employment from the site other than by car would be poor. On the other hand, the development would make a modest contribution to meeting housing need. In addition, subject to appropriate conditions, there would not be material harm to the character and appearance of the surrounding area or to the setting of listed buildings. A minor economic benefit would arise from developing the site and the economic activity of those occupying the dwellings. There would be conflict with policies CS5 and RLP2 but those policies are out-of-date and are worthy of limited weight. Applying the test set out in [NPPF] paragraph 14, I find that there are not adverse impacts of granting permission which would significantly and demonstrably outweigh the benefits, when assessed against [NPPF] policies as a whole. Nor are there specific policies in the [NPPF] which indicate that the development should be restricted. The proposal would amount to sustainable development. Permission should be granted in accordance with the [NPPF’s] presumption in favour of sustainable development.”

In light of this, the Court considered whether the inspector misinterpreted and misapplied the policy in paragraph 55 of the NPPF. However, Lindblom LJ stressed that in considering the interpretation of planning policy, whether in the development plan or in statements of national policy, the court must avoid the mistake of treating the policy in question as if it had the force or linguistic precision of a statute – which it does not – and must bear in mind that broad statements of policy do not lend themselves to elaborate exegesis. The court’s task is simply to discern the objective meaning of the policy as it is written, having regard to the context in which the policy sits. On the other hand, the application of policy is for the decision-maker, on a true understanding of what the policy means, but with freedom to exercise planning judgement as the policy allows or requires – subject to review by the court on Wednesbury principles alone. The court will not lightly accept an argument that an inspector has proceeded on a false interpretation of national planning policy or guidance. Nor will it engage in – or encourage – the dissection of an inspector’s planning assessment in the quest for such errors of law. Excessive legalism in the planning system is always to be deprecated. The Court therefore agreed with the respondents’ submission that its task is to construe the words of the policy itself, reading them sensibly in their context. This is not a sophisticated exercise, and it need not be difficult. It is, in fact, quite straightforward. Planning policies, whether in the development plan or in the NPPF, ought never to be over-interpreted. As this case showed, over-interpretation of a policy can distort its true meaning – which is misinterpretation.

Lindblom LJ made three important points. First, paragraph 55 is expressed in general and unprescriptive terms. It does not dictate a particular outcome for an application for planning permission. It identifies broad principles and indicates a broad approach. LPAs are advised what “should” be done. The policy is not expressed as containing a “presumption”, and the paragraph should not be read as creating one. Rather, it indicates to authorities, in very broad terms, how they ought to go about achieving the aim stated at the beginning of paragraph 55: “[to] promote sustainable development in rural areas”. It does not set specific tests or criteria by which to judge the acceptability of particular proposals. It does not identify particular questions for a local planning authority to ask itself when determining an application for planning permission. Its tenor is quite different, for example, from the policies governing the protection of the Green Belt, in paragraphs 87 to 92 of the NPPF. The use of the verb “avoid” in the third sentence of paragraph 55 indicates a general principle, not a hard-edged presumption.

Second, the policy explicitly concerns the location of new housing development. The first sentence of paragraph 55 tells authorities where housing should be “located”. The location is “where it will enhance or maintain the vitality of rural communities”. The concept of the “vitality” of such a community is wide, and undefined. The example given in the second sentence of paragraph 55 – “development in one village” that “may support services in a village nearby” – does not limit the notion of “vitality” to a consideration of “services” alone. But it does show that the policy sees a possible benefit of developing housing in a rural settlement with no, or relatively few, services of its own. The third sentence of the paragraph enjoins authorities to avoid “new isolated homes in the countryside”. This is a distinction between places. The contrast is explicitly and simply a geographical one. Taken in the context of the preceding two sentences, it simply differentiates between the development of housing within a settlement – or “village” – and new dwellings that would be “isolated” in the sense of being separate or remote from a settlement. Although certain special exceptions are mentioned, what is perfectly plain is that, under this policy, the concept of concentrating additional housing within settlements is seen as generally more likely to be consistent with the promotion of “sustainable development in rural areas” than building isolated dwellings elsewhere in the countryside. In short, settlements are the preferred location for new housing development in rural areas. That, in effect, is what the policy says.

The third point is that the adjective “isolated”, which was the focus of argument before the Court, is itself generally used to describe a location. It is not an unfamiliar word. It is commonly used in everyday English. It carries the ordinary sense of something that is “… [placed] or standing apart or alone; detached or separate from other things or persons; unconnected with anything else; solitary” (see Oxford English Dictionary, second edition). In Lindblom LJ’s view, in its particular context in paragraph 55 of the NPPF, the word “isolated” in the phrase “isolated homes in the countryside” simply connotes a dwelling that is physically separate or remote from a settlement. Whether a proposed new dwelling is, or is not, “isolated” in this sense will be a matter of fact and planning judgment for the decision-maker in the particular circumstances of the case in hand.

What constitutes a settlement for these purposes is left undefined in the NPPF. The NPPF contains no definitions of a “community”, a “settlement”, or a “village”. There is no specified minimum number of dwellings, or population. It is not said that a settlement or development boundary must have been fixed in an adopted or emerging local plan, or that only the land and buildings within that settlement or development boundary will constitute the settlement [Emphasis added]. In Lindblom LJ’s view, a settlement would not necessarily exclude a hamlet or a cluster of dwellings, without, for example, a shop or post office of its own, or a school or community hall or a public house nearby, or public transport within easy reach. Whether, in a particular case, a group of dwellings constitutes a settlement, or a “village”, for the purposes of the policy will again be a matter of fact and planning judgement for the decision-maker. In the second sentence of paragraph 55 the policy acknowledges that development in one village may “support services” in another. It does not stipulate that, to be a “village”, a settlement must have any “services” of its own, let alone “services” of any specified kind.

The Court was satisfied that this reading of the policy in paragraph 55 fits the broader context of the policies for sustainable development in the NPPF and guidance in the PPG. In Lindblom LJ’s opinion, the language of paragraph 55 is entirely unambiguous, and there is therefore no need to resort to other statements of policy, either in the NPPF itself or elsewhere, that might shed light on its meaning. In particular, the Court did not accept the appellant’s argument that the word “isolated” in paragraph 55 must be understood as meaning either (a) “physically isolated” or (b) “functionally isolated” or “isolated from services and facilities”; that the decision-maker must therefore address two questions – first, whether the proposed new dwelling would be physically separate or remote from any other dwelling, and secondly, whether it would be isolated from services and facilities; and that if the proposed development would be either separate or remote from other dwellings or separate or remote from services and facilities, it offends the policy. This would be a strained and unnatural reading of the policy. In Lindblom LJ’s view, it is neither necessary nor appropriate to gloss the word “isolated” by reading an additional phrase into paragraph 55 whose effect would be to make the policy more onerous than the plain meaning of the words it actually contains. No such restriction is apparent in the policy, or implicit in it.

In the circumstances, there was no need for “special circumstances” to be identified to justify a development of “new isolated homes in the countryside”. This was not such a development. The Court therefore concluded that the inspector did not misinterpret or misapply the policy in paragraph 55 of the NPPF. His understanding of the policy was accurate, and his application of it impeccable.

It is clear from this judgment that the prescriptive and restrictive interpretation that some LPAs have sought to put on paragraph 55 of the NPPF is inappropriate, and that a more ‘broad brush’ approach is required when considering the application of this policy. Lindblom LJ’s observations on the boundaries of a settlement are particularly interesting, and clearly envisage a more flexible approach in this regard than the rigid adherence to designated settlement boundaries that LPAs commonly seem to adopt. This guidance from the Court of Appeal on the approach to be taken to the interpretation of paragraph 55 is extremely helpful, and it is to be hoped that it will put an end to sterile disputes about the acceptability of developments that are outside a designated development boundary.



Sam Marriott said...


I have just had an application for a client refused by LPA and Appeal citing the exact thing your post relates to - I was actually arguing that Para55 should not even be applied, never mind enforced as it was against my application.

I got objections from three neighbors, one even complaining about the shadowing on their home. The site sits 3 minute walk from the village center, along this walk you pass around 10 dwellings. How could this be considered isolated or in open countryside?

Would it be possible to contact you in a professional capacity to have a look over this?

Evan Owen - Snowdonia said...

A fascinating case brought into perspective with clarity, well done Martin.

Richard W said...

Hi Martin, I have no issue with the clarified interpretation of NPPF 55, but I do have a comment on your conclusion "...and it is to be hoped that it will put an end to sterile disputes about the acceptability of developments that are outside a designated development boundary."

Let us not forget that the NPPF is no more than a material consideration and if it pulls against the adopted development plan as to the acceptability of a proposal there is no legal presumption in favour of the NPPF - quite the opposite. So there will still need to be proper discussions with LPAs about their development plan policies - unless one is to (unlawfully) disregard S38(6) altogether. The idea that the NPPF automatically and simplistically trumps the development plan has, I suggest, been well and truly put to bed by the Supreme Court.

Mark Richards said...

Thanks for this Martin. The comments in this judgement are welcomed and will hopefully mean we can move away from 'sustainability' being judged by whether a site is the correct side of an arbitrary line. I'd be interested to hear your thoughts on whether LPAs must now apply this approach in all instances or whether it will only apply in cases where local policies are out-of-date?

Martin H Goodall LARTPI said...

I am a bit behind in moderating comments on this item; hence the delay in their appearing here.

First, in response to Sam Marriott (10 April), I have no means of replying direct to correspondents who post comments here. So, if he would like to engage Keystone Law’s professional services, would he please email me.

Turning to Richard W’s comment, he makes a valid point. The position may not be quite so clear-cut as I implied in summarising this judgment, but it does nevertheless indicate that LPAs should, perhaps, take a less rigid approach to this issue (subject of course to section 38(6) – provided the development plan is reasonably up-to-date, and the LPA can demonstrate a 5-year land supply, etc.).

I think last point also answers Mark Richards’ query.