Thu, 14 Jun 2018
On 9th June the High Court settled this long-running conundrum by sealing a consent order in which the Secretary of State agreed that paragraph 109 of the Framework is not a restrictive policy for the purposes of footnote 9. This Note explains why.
In an appeal decision (‘DL’) dated 4th January 2018 an Inspector considered whether an appeal site in Aylesbury Vale constituted a “valued landscape” in the terms of paragraph 109 of the National Planning Policy Framework [DL11 to DL20]. The Inspector concluded that the landscape in which the appeal sites stands is a “valued landscape” in the terms of the Framework [DL20]. The Inspector had to determine the question: Is Framework para 109 a footnote 9 policy? [DL33].
The Inspector concluded that paragraph 109 of the Framework is a restrictive policy within the meaning of footnote 9 to paragraph 14 of the Framework and “notwithstanding the age of the Aylesbury Vale District Local Plan (AVDP), the so-called tilted balance does not apply in this case”.
The Inspector weighed the harms which he had found against the benefits on an even (ie, not tilted) balance and concluded that the benefits of the scheme were nonetheless outbalanced by the identified harm and Development Plan conflict such that the proposal did not represent sustainable development and thus he concluded that planning permission should be refused and he dismissed the appeal [DL45].
In Gladman Developments Limited v Secretary of State for Housing Communities and Local Government and Aylesbury Vale District Council (CO/661/2018) the Claimant contended that “valued landscape” within the meaning of paragraph 109 of the Framework constituted a policy within the Framework which indicated that development should be restricted (see specifically the second indent to paragraph 114 and footnote 9 in the National Planning Policy Framework).
The effect of the Inspector’s finding was to require that he undertook his assessment of the planning merits on a simple planning balance, and not under a “tilted balance” which he would have applied if he had correctly interpreted the abovementioned provisions of the Framework. In consequence, the Claimant was materially prejudiced in the Inspector’s assessment of the appeal proposals. The approach to the planning balance would have been materially different if the Inspector had interpreted the Framework correctly in that the Inspector would have approached the planning balance on the basis that he should grant permission unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole (see paragraph 14, first indent).
The Claimant contended that this interpretation was incorrect because:
Chapter 11 (conserving and enhancing the natural environment) of the Framework should be read and understood as a whole and its individual paragraphs and policies should be understood in context and in a manner which produces a coherent whole;
Paragraph 109 of the Framework is an introductory paragraph which is expanded upon in several respects elsewhere within the chapter;
So, for example, in respect of “soils” which figures in the same first bullet point as valued landscapes, the Framework provides a specific policy at paragraph 112 which the Planning Court has determined not to be a restrictive policy for the purposes of paragraph 14;
- In respect of landscapes, paragraph 113 expands upon the introductory paragraph and expressly refers to the distinctions which should be made in the hierarchy of international, national and locally designated sites. Given that such designated sites do not necessarily constitute restrictive policies for the purposes of paragraphs 14 and footnote 9, it is perverse to find that the lowest level of designation for landscapes (‘valued but undesignated’) attracts the effect of disapplying an important presumption within the Framework, whereas other designations may not.
- No part of the Framework policies in respect of valued landscape includes any specific policy instruction or similar wording to “planning permission shall not be granted”; rather, there is no further guidance in this regard than valued landscapes being protected and enhanced.
Attention is drawn to the following features of the debate which has evolved during the life of the Framework:
- Different Inspectors have reached different conclusions: Nanpantan Road, Loughborough (16th January 2017) was a decision in which the appellants conceded that FN9 was restrictive and reliance was placed on the permission decision in Leckhampton; in Coggeshall (12 July 2017) the Inspector expressly reached a contrary view to that at Nanpantan Road; similarly at Wendover (9 October 2017) the Inspector characterised §109 as an aspiration and not a restriction. Going the other way, Inspectors did find §109 to be restrictive: Harrogate (6 September 2017); Steeple Bumpstead (6 September 2017); Finchingfield (19 October 2017).
- The appeal decisions which find that footnote 9 is a restrictive policy have been informed by a refusal of permission to proceed on a Section 288 claim known as “Leckhampton”. This is an unsatisfactory basis for such reasoning because such decisions are not the result of full argument and really should not be cited to decision makers either at all, or with a substantial health warning.
- The Secretary of State held that FN9 is a restrictive policy in the Framework in his decision letter concerned with development at Leckhampton. The developers applied for permission to proceed to challenge that decision. Lewis J refused permission on the papers when the claim was articulated via a large number of grounds.
- There was an oral renewal. On renewal, permission was refused in respect of the footnote 9 point on the express basis that even if the argument succeeded, the decision would inevitably be the same because in that case the Secretary of State had made an alternative finding that the proposal was contrary to the Development Plan. Hence, Leckhampton did not proceed because of that finding by Holgate J, after hearing oral argument, not that the footnote 9 point was not arguable, but that if that ground were made good, the claim would nevertheless be dismissed. This point has not been canvassed in front of the Inspectors who have relied upon the paper refusal of permission in Leckhampton.
- In his Skeleton Argument for Borough of Telford and Wrekin v. Secretary of State for Communities and Local Government  EWHC 3073, in respect of a BMV/FN9 point, the Secretary of State provided a table of principles which are contained within this table results in the conclusion that the Secretary of State does not consider valued landscapes to be a restrictive policy. Lang J held:
“I accept the Defendants' submissions that the policy is simply an instruction (i) to " take into account " the economic and other benefits of the best and most versatile agricultural land which does not confer any particular level of protection and (ii) to " prefer " the use of poorer quality land if significant development of agricultural land is necessary, which applies to all agricultural land, not just BMV land. It is not a prohibition on the use of BMV agricultural land, nor a restriction on development in principle; it does no more than to encourage the relocation of proposed development onto poorer quality agricultural land if available. The permissive language of NPPF 112 is very different to the language used in the " specific policies " of restraint identified in footnote 9….”.
- Both soils and valued landscapes are introduced in Chapter 11 of the Framework in the same bullet point of the same paragraph. By parity of reasoning and comparison of the language used, if best and most versatile agricultural land policy in paragraph 112 of the Framework is not a restrictive policy, then valued landscapes are not either. This analysis points very clearly to the generality of paragraph 109 of the Framework and not to any restrictive function or impact.
- Still further, the Secretary of State’s view as expressed in the White Paper “Fixing our Broken Housing Market” (February 2017) is consistent with this view.
- On 9th June 2018 the High Court (Holgate J) sealed a consent order which confirmed the parties’ agreement that FN9 was not a restrictive policy for the purposes disapplying the tilted balance in §14 of the Framework.
- If, during the course of the summer, NPPF2 is published in similar form to that consulted upon, this issue will be further clarified. FN7 to §11 of NPPF2 is a closed list which does not include ‘valued landscape’.
Richard Kimblin QC
Joint Head of Group
Planning and Environment Group