Legal Viewpoint: How revised framework has been shaped by litigation

Wed, 04 Apr 2018

The interpretation of the National Planning Policy Framework (NPPF) has been subject to some very high-profile court judgments, not least Suffolk Coastal District Council v Hopkins Homes Ltd and Richborough Estates Partnership v Cheshire East Borough Council, which ended up in the Supreme Court last year.

The meaning of the key phrases in paragraphs 14, 47 and 49 of the NPPF has now been settled, and this month’s draft revisions to the NPPF retain much that is familiar. However, some of the operative phrases are set to change, opening up the possibility of yet more litigation. A key candidate is the revised draft’s reference, in paragraph 11, to "the policies which are most important for determining the application" in interpreting the presumption in favour of sustainable development. 

What is clear is that the revised draft has been shaped to a significant degree by much of the recent litigation. Take the phrase in paragraph 12 stating that "permission should not usually be granted" for applications that conflict with an up-to-date development plan. This test cannot usurp the legislation, which permits proposals contrary to the development plan on the basis of "other material considerations". So paragraph 12 goes on to emphasise this statutory requirement. 


The drafters were no doubt mindful of Lord Carnwath’s words, in paragraph 21 of the Hopkins and Richborough ruling, that the NPPF cannot "displace or distort the statutory scheme". The secretary of state will also have been mindful of his own concession, recorded in paragraph 24 of the judgment in Woodcock Holdings v Secretary of State for Communities and Local Government [2015]. There he accepted that the strikingly similar phrase "not normally allowed", which is used to assess proposals that contravene a neighbourhood plan under paragraph 198 of the current NPPF, does not alter the relevance of "other material considerations" in determining planning applications and appeals. 


On five-year supply, the glossary in the revised draft proposes a new definition of "deliverable" sites, replacing the present footnote 11. It moves away from the benevolent interpretation of "deliverable" favoured by the Court of Appeal in St Modwen v Secretary of State for Communities and Local Government [2017] and tightens it up in line with the view taken by Lord Gill in paragraph 78 of the Hopkins and Richborough judgment. Gill emphasised "the futility of authorities relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five-year period". This is a welcome return to realism. 


Finally, the revised draft responds to the issues raised in Richborough and Others v Secretary of State for Communities and Local Government [2018]. This challenged the December 2016 written ministerial statement on neighbourhood plans on the grounds that it set a lower three-year land supply threshold for neighbourhood plans that allocate housing sites, but without any reference to how much housing needed to be allocated or to the period over which the three-year supply should be measured. Paragraph 14 of the revised draft NPPF addresses these important requirements. 

Written by Christopher Young QC, a barrister at No5 Chambers who acted for the developer in both of the Richborough cases and the St Modwen case.

This article originally appeared on https://www.planningresource.co.uk/article/1460645/legal-viewpoint-revised-framework-shaped-litigation

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