The 2012 NPPF: A Digest of Decisions
Plan-making
NPPF 150-185
NPPF 151
R (Hughes) v South Lakeland District Council [2014] EWHC 3979 (Admin), HHJ Waksman KC
Simply because the NPPF does not expressly prohibit local plans from containing particular policy does not mean that they are free to adopt any policy [75].
NPPF 152
Calverton Parish Council v Nottingham City Council, Broxtowe Borough Council and Gedling Borough Council [2015] EWHC 1078 (Admin), Jay J
Richard Turney appeared for the Claimant
“I read this provision as making clear that the identification of “exceptional circumstances” (although not expressly mentioned) is a planning judgment for the Local Planning Authority. However, net gains across all three of the dimensions of sustainable development may not always be possible. In these circumstances, the impingement on environmental factors will require the identification of exceptional circumstances in order to be justified (“significant adverse impacts on any of these dimensions should be avoided”), and – to the extent that this cannot be achieved – must be ameliorated to the extent possible.”[22]
NPPF 154
R (Miller Homes Limited) v Leeds City Council [2014] EWHC 82 (Admin), Stewart J
NPPF 154 does not indicate that the meaning of “Development Management Policy” in the Town and Country Planning (Local Planning) (England) Regulation 2012, Reg 5(a)(iv) is much wider than regulating land, such as regarding density and mix of housing. [36]
NPPF 158-159
Gladman Development Ltd v Wokingham BC [2014] EWHC 2320 (Admin), Lewis J
“Where a development plan document is intended to deal with the assessment of the need for housing, then, the provisions of the Framework material to housing need will be a material consideration. A local planning authority dealing with the question of the amount of housing needed for its area will need to have regard to paragraph 47 of the Framework. The provisions governing a local plan – that is a development plan document – dealing with the assessment of housing need would have to have regard to paragraphs 158 and 159 of the Framework. Any examination of that local plan, that is that particular development document, would need to have regard in that context to paragraph 182 of the Framework.
Properly read, however, the Framework does not require a development plan document which is dealing with the allocation of sites for an amount of housing provision agreed to be necessary to address, also, the question of whether further housing provision will need to be made.” [64]-[65]
NPPF 159
Satnam Millennium Limited v Warrington Borough Council [2015] EWHC 370 (Admin)
Christopher Lockhart-Mummery KC appeared for the Claimant
“It is to be noted that [NPPF 159] deals particularly with housing. It begins by requiring LPAs to have a clear understanding of housing needs “in their area”. It then proceeds to require LPAs to prepare a SHMA to assess their full housing needs, working with neighbouring authorities where housing market areas cross administrative boundaries. In other words, the LPA has to have the clear understanding of their area housing needs, but in assessing these needs, is required to prepare an SHMA which may cross boundaries.
St Modwen Developments Ltd [2016] EWHC 968 (Admin), Ouseley J
‘It is clear from NPPF [159] supported by the PPG that the housing market area is not synonymous with the area of a single local planning authority, though they are often the same. The aim is to assess housing needs fully and objectively, and the needs are those of the market area and not those of the district council’s area. The NPPF would read very differently if “housing market areas” was another phrase for planning authority areas, as it could so easily have said had that been intended. The text of NPPF is replete with references to the need for cross-boundary co-operation.’ [77]
NPPF 173
Barrow upon Soar Parish Council [2014] EWHC 274 (Admin), Collins J
Stephen Whale appeared for the First Defendant
Christopher Lockhart-Mummery KC appeared for the Third Defendant
NPPF 173 is a “general paragraph in the Plan-making section and not a consideration for all proposed developments”. [9]
“Paragraph 173 makes the obvious point that planning permissions should not be granted unless the development in question is viable. The need for developments to be deliverable is included in Paragraph 173, since there is a general requirement that planning permissions be implemented within a reasonable time, often five years. Even if the meaning of deliverable in the footnote to Paragraph 47 can be generally imported into Paragraph 173, there is no requirement that in order to be regarded as sustainable the development must be completed within 5 years. At most, it requires a reasonable time which can properly identified by conditions. Furthermore, since the objective of the relevant bullet point in Paragraph 47 is the identification of particular sites which can produce a five year supply, the precise definition of deliverable in its limitation to a realistic prospect of delivery within five years is not material in relation to sites which are not within the annual five year requirement.” [10]
Parkhurst Road Limited [2018] EWHC 991 (Admin)
Russell Harris KC appeared for the Claimant
Tim Buley appeared as senior counsel for the Secretary of State
Dan Kolinsky KC appeared for the 2nd Defendant
“31 There are three points to be noted about paragraph 173. First, it is recognised that affordable housing imposes an economic cost on the carrying out of development. But as a matter of principle that is no different from the costs of other planning requirements, such as highway or other infrastructure necessary for the development to take place. A transparent, properly prepared viability appraisal which demonstrates that the overall cost of planning obligations is too great for development to be viable can enable the planning authority to exercise a judgment about the relative importance of each of the obligations in that particular case . It also assists the decision-maker to balance the desirability of securing those obligations against planning disbenefits which are said to constrain the amount or type of value-generating development which can be carried out on the site.
32 Second, it is recognised that a “competitive return” must be allowed not only for the developer but also the owner of the land upon which the development is to be sited.
33 Third, a viability appraisal is required to assess an appropriate return for a land owner who is said to be “willing”. The concept of a “willing seller” commonly features in legal principles applied to a wide range of open market valuations. The “willing seller” is a hypothetical character with no special characteristics or attributes, but who is assumed to be willing to sell at the best price he can reasonably obtain in the open market (Trocette Property Co Ltd v Greater London Council (1974) 28 P & CR 408 , 416). Likewise, in the classic statement in Inland Revenue Commissioners v Gray [1994] STC 360 Hoffmann LJ (as he then was) explained that the hypothetical seller is an anonymous but reasonable vendor, who goes about the sale as a prudent man of business. The hypothetical purchaser is also assumed to behave reasonably and to make proper enquiries about the property. He reflects reality in that he embodies whatever actually was the demand for the property at the relevant time. The concept of the open market involves the assumption that the whole world was free to bid for the property, and then forming a view about what in real life would have been the best price reasonably obtainable. The term “willing” indicates that it must be assumed that the vendor and purchaser behaved as would reasonably be expected of prudent parties.” [31]-[33]
NPPF 182
DB Schenker Rail (UK) v Leeds City Council [2013] EWHC 2865 (Admin), HHJ Belcher
Reuben Taylor appeared for the Claimant
John Hobson KC appeared for the Council
The guidance as to soundness is not prescriptive [12]
It is not necessary for an Inspector to “adhere slavishly to national planning policy”. But if departing from national planning policy in a soundness decision, must give clear reasons for doing so. [14]
Grand Union Investments Ltd v Dacorum BC [2014] EWHC 1894 (Admin), Lindblom J
Christopher Katkowski KC and Robert Walton appeared for the Claimant
The reference to “objectively assessed” requirements echoes the requirement of “full, objectively assessed need” for housing in NPPF 47. [57]
The guidance to soundness in the NPPF is policy, not law, and should not be treated as law. [59]
Gladman Development Ltd v Wokingham BC [2014] EWHC 2320 (Admin), Lewis J
“Where a development plan document is intended to deal with the assessment of the need for housing, then, the provisions of the Framework material to housing need will be a material consideration. A local planning authority dealing with the question of the amount of housing needed for its area will need to have regard to paragraph 47 of the Framework. The provisions governing a local plan – that is a development plan document – dealing with the assessment of housing need would have to have regard to paragraphs 158 and 159 of the Framework. Any examination of that local plan, that is that particular development document, would need to have regard in that context to paragraph 182 of the Framework.
Properly read, however, the Framework does not require a development plan document which is dealing with the allocation of sites for an amount of housing provision agreed to be necessary to address, also, the question of whether further housing provision will need to be made.” [64]-[65]
R (Crownhall Estates Ltd) v Chichester District Council [2016] EWHC 73 (Admin), Holgate J
Stephen Morgan appeared for the Defendant
The requirements of soundness in NPPF 182 do not apply to the examination of a neighbourhood plan [29(i)].
NPPF 184
R (Gladman Development Ltd) v Aylesbury Vale DC [2014] EWHC 4323 (Admin), Lewis J
“It is correct that paragraph 184 of the Framework deals with neighbourhood development plans. That paragraph does provide that the ambitions of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. It is for that reason that the paragraph provides that local planning authorities should set out clearly their strategic policies for their area and should ensure that there is an up-to-date Local Plan (that is, up to date development plan documents) in place as quickly as possible. But the Framework does not say that if a local planning authority has not, in fact, been able to put in place an up-to-date strategy dealing with housing or some other aspect of land use or development, that a neighbourhood plan cannot, in the interim, put in place policies for its area.” [75]
NPPF 184-185
R (DLA Delivery Ltd) v Lewes DC [2017] EWCA Civ 58, Lewison and Lindblom LJJ
“the policies in paragraphs 184 and 185 of the NPPF reflect the statutory requirement, in paragraph 8(2)(e), for a neighbourhood development plan to be in “general conformity” with the “strategic policies” of the development plan, and the references to the “Local Plan” in those policies of the NPPF are clearly to a statutorily adopted local plan, not an emerging plan. Both NPPF policy and the guidance in the PPG are designed to prevent the mischief of a neighbourhood development plan frustrating the strategy of an up-to-date local plan. But the encouragement in paragraph 184 for local planning authorities to “set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible” does not imply that only when an up-to-date local plan has already been adopted will it be possible for a neighbourhood development plan to be taken though its own statutory process.” [26]
