Court of Appeal delivers guidance on the relationship between the NPPF and corresponding PPG

Summary

The Court of Appeal has provided guidance on the relationship between the policy for the "sequential test" in the National Planning Policy Framework (NPPF) and the corresponding guidance in the PPG and corresponding Planning Practice Guidance (PPG). The judgment also provides guidance on the role and relationship of the NPPF and PPG more generally.

This judgment will be of interest to anyone working with national planning policy and guidance.

Background

In this case, Mead Realisations Ltd. appealed against the High Court's decision, which dismissed its claim for planning statutory review of the inspector's decision to refuse planning permission for a development of up to 75 dwellings at Lynchmead Farm, due to non-compliance with the sequential test for flood risk.

The main issue

This was whether an inspector erred in law by misunderstanding or misapplying policy and guidance on the "sequential test" for development proposed in areas at risk of flooding, particularly the relationship between the National Planning Policy Framework (NPPF) and the national Planning Practice Guidance (PPG).

The appeal raised two crucial issues: (1) whether the judge wrongly held that the PPG can "amend" the NPPF, and (2) whether the judge wrongly held that the inspector properly treated the PPG as "elucidating" the NPPF.

Key points of interest from the judgment

Sir Keith Lindblom gave the judgment. In doing so referred to the well-established principle that the interpretation of planning policy, whether at national or local level, is ultimately a matter for the court.

The court found that the PPG did not amend the NPPF but clarified it; "The guidance does not exceed the ambit of the policy. It does what guidance in the PPG can quite legitimately do, which includes explaining a particular policy in the NPPF and how it is meant to operate." The court held that the PPG "clarifies" the NPPF policy; "The PPG did not contradict or override the existing NPPF policy for the sequential test".

The inspector had concluded that the proposed development failed the sequential test because there were reasonably available sites for residential development on land with a lower risk of flooding than the appeal site. This conclusion was based on the interpretation of the NPPF as clarified by the PPG.

The court upheld the inspector's approach as lawful, agreeing that the PPG guidance was a material consideration and that the inspector's conclusions were based on a proper understanding and application of the NPPF and PPG. It followed that no criticism could be made of the conclusions which flowed from this approach: that the proposed development conflicted with both national planning policy and the development plan.

The appeal was dismissed.

On the relationship between the NPPF and PPG court said the following:

• No "legal distinction" exists between them.
• Their status is equivalent: the NPPF and PPG are statements of national policy issued by the Secretary of State exercising his general power to do so as minister with overall responsibility for the planning system.
• The NPPF is a comprehensive framework of national planning policy, in which the Government sets out its general policies for planning decision-making and plan preparation.
• The PPG is national guidance for planning practice, which can reinforce, explain and clarify that framework.
• It is not right to describe the PPG as being, in a legal sense, "subservient" to the NPPF.
• The exact relationship between a particular policy in the NPPF and corresponding or relevant guidance in the PPG will vary according to the content and terms of the policy and guidance in question.
• Policies in the NPPF and guidance in the PPG may (…) be used as an aid to the interpretation of each other.
• The publication of practice guidance does not have to be contemporaneous, or near contemporaneous, with the publication of the policy it serves.

Comment

The court noted that given the function of guidance in the PPG to support policies in the NPPF, it is not expected for the Government to publish policies and guidance that are inconsistent with each other. It noted this would not only be counter-intuitive; it would cause needless confusion about the Government’s objectives. Having noted this, the court also opined that, there was no legal principle that prevents the Secretary of State altering national policy in the NPPF by adopting PPG (or issuing a written ministerial statement) which amends the NPPF.

The PPG is updated by online publication and often without consultation. This makes it a powerful tool for the Secretary of State to amend and refine government policy very quickly.

However, the weight to be afforded to individual policies will continue to be a matter of discretion for decision-makers. Sir Keith Lindblom (Senior President of Tribunals), who gave the judgment provided this guidance,

"Both the policies in the NPPF and the guidance in the PPG are capable of being material considerations in decision-making on planning applications and appeals. And the weight to be given to such policy or guidance in a planning decision is a matter for the decision-maker, subject to the court’s intervention on public law grounds." (paragraph 38)

Sir Keith Lindblom added,

"Relevant factors in assessing weight may include the respective terms of the policy and guidance and whether they sit easily together; the timing of their publication, including, for example, whether the policy emerged before the guidance or vice versa, and how recently each was issued; and the nature of the process by which they were produced, including, for example, the fact that the guidance in the PPG is generally not subject to any external consultation before being issued, whereas the policies in the NPPF are." (paragraph 39)

This decision highlights the need for practitioners to carefully consider all relevant planning policy and after this judgment particularly the PPG, and written ministerial statements (where applicable).