The NPPF: A Digest

Protecting Green Belt land

Mayor of London [2020] EWHC 1176 (Admin), Holgate J
Richard Turney appeared for the Secretary of State

“109. The courts should respect the expertise of specialist inspectors, and indeed those taking decisions within the Department, and start at least with the presumption that they will have understood policies in the development plan and NPPF correctly. They have primary responsibility for the resolution of disputes over the application of policy, and the courts should be cautious to avoid undue intervention in policy judgments within their areas of specialist competence (Hopkins Homes Limited v Secretary of State for Communities and Local Government [2017] 1 WLR 407 at [25]).
110. These principles drawn from Hopkins are particularly relevant to the application of the Secretary of State’s own policy in paragraph 144 of the NPPF. It was after all the Secretary of State who successfully appealed in Redhill to establish the correct interpretation of this policy upon which the Mayor relies.
111. In addition an analogy may be drawn with the decision of the Court of Appeal in Mordue v Secretary of State of Communities and Local Government [2016] 1 WLR 2682 dealing with the application of policies now to be found in paragraphs 189 to 196 of the NPPF. An explicit reference by a decision-maker to one of that group of policies is sufficient to show that he has taken them all into account (so far as relevant) “absent some positive contrary indication in other parts of the text of his reasons” [26-28] (and see also R (Palmer) Herefordshire Council [2017] 1 WLR 411 at [7]).”

114. In my judgment the correct approach is to consider whether as a matter of substance, not form, the VSC test was applied taking into account “other harm”, that is heritage harm…”

R (Lochailort Investments Ltd) v Mendip DC [2020] EWCA Civ 1259, Lewison, Floyd and Asplin LJJ

“It can thus be seen that national planning policy relating to the Green Belt permits any form of development where that is justified by very special circumstances; and it also describes as “not inappropriate” the various types of development described in paragraphs 145 and 146. Relevantly, those expressly mentioned types of development include the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, changes of use for outdoor sport, limited infilling in villages, and limited affordable housing for local communities. But even in those cases paragraph 144 requires that planning authorities give “substantial weight” to any harm to the Green Belt.” [13]

R (Co-Operative Group Ltd) v West Lancashire BC [2021] EWHC 507 (Admin), Holgate J

“30. In stating [in North Yorkshire Council v Samuel Smith Old Brewery (Tadcaster) [2020] PTSR 221] that openness is not necessarily a statement about the visual qualities of land, Lord Carnwath was not excluding the potential relevance of such qualities. His statement that openness does not imply freedom from “any form” of development was to be understood in the context of what is now in paras. 145 to 146 of the NPPF which define categories of appropriate development. He was simply saying that the NPPF treats the protection of the openness of the Green Belt as compatible with some forms of development, such as mineral extraction and the re-development of an already developed piece of land.”

NPPF 144

Sefton MBC [2021] EWHC 1082 (Admin), HHJ Eyre KC

“Mr. Riley-Smith [Counsel for the Claimant] contended that paragraph 144 required that where multiple harms were present then substantial weight was to be given to each separately at the stage of allocating weight to harms and benefits and that those separate substantial weights were then to be brought into the second stage, the balancing exercise. The Claimant characterises this as the “individual approach” with substantial weight being given to the Green Belt harms individually. Mr. Riley-Smith based that argument in very large part on the language of paragraph 144 saying that it was the proper reading of the direction that substantial weight was to be given to “any” harm to the Green Belt.” [22]

“30. The context and wording of paragraph 144 are conveniently considered together. Mr. Riley-Smith argues that it is significant that there can be different kinds of harm to the Green Belt. Thus inappropriate development is by definition harmful regardless of the physical effect of the proposed development but there can be separate harm to openness or by way of encroachment in the countryside. It accordingly is appropriate for the NPPF to specify the weight to be given to the different kinds of harm. Paragraph 144 is to be seen as providing that substantial weight is to be given separately to each such element of Green Belt harm. In that regard Mr. Riley-Smith placed considerable emphasis on paragraph 144’s requirement that “substantial weight is given to any harm to the Green Belt” contrasting that with the language of paragraph 3.2 of PPG2 with its provision that “the Secretary of State will attach substantial weight to the harm to the Green Belt” (emphasis added in both instances). Mr. Riley-Smith contends that the two-stage process of, first, allocating weight to the harm and, second, calculating the balance between the competing considerations follows from the two sentences of paragraph 144 where the first sentence provides for the giving of substantial weight and the second sentence says that very special circumstances are not present unless the potential harm to the Green Belt is clearly outweighed by other considerations.

1. In my judgement the Claimant’s interpretation of paragraph 144 fails to take proper account of the nature and purpose of the NPPF and of paragraph 144 in particular. The NPPF is not a statute and is not to be construed as such, rather it is guidance to decision makers and paragraph 144 is giving guidance as to how a particular exercise of planning judgement should be approached. Those making planning decisions must apply the NPPF and must interpret it correctly but the nature of the decision-making process is in turn relevant as to how the policy is to be interpreted. That is because the interpretation is to have regard to the persons by whom and in what setting the policy is to be applied. In that regard it is important to remember the way in which Lindblom LJ in East Staffordshire BC v SSCLG [2017] EWCA Civ 893, [2018] PTSR 88 at [50] characterised the decision making and his consequent warning to the court saying:

“I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system, or in proceedings before the Planning Court, or in subsequent appeals to this court. The court should always resist over complication of concepts that are basically simple. Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law…”

1. The Claimant’s approach to the interpretation of paragraph 144 is vitiated by an excessively forensic analysis and by a failure to read that paragraph in the light of paragraph 143. It is paragraph 143 which sets out the proposition that inappropriate development is by definition harmful to the Green Belt and it is paragraph 143 which sets out the requirement that such development should not be approved unless there are very special circumstances. The second sentence of paragraph 144 is in terms setting out the only situation in which it will be appropriate to find that there are very special circumstances. It is clearly intended as an elucidation and development of paragraph 143. The first sentence of paragraph 144 is to be read in the light of the paragraph which precedes it and the sentence in the same paragraph which follows it. That first sentence is not setting out a new requirement separate from paragraph 143 but is part and parcel of the elucidation of paragraph 143 which paragraph 144 is intended to provide.
2. The Claimant’s argument is also flawed by taking metaphorical language unduly literally. The reference to “substantial weight” being given to harm is ultimately a metaphor as is the reference to the harm being “clearly outweighed” by other considerations. The exercise to be undertaken is not one of balancing weights on scales nor even one of saying that harm to the Green Belt is equivalent to a particular weight (say 10 stone) while a different circumstance such as an applicant’s family circumstances can never be rated as equivalent to more than a different weight (say 5 stone). Rather the language of weight and weighing is being used to emphasise the importance of the Green Belt. It is used to make it clear to decision makers that they cannot approve inappropriate development in the Green Belt unless the considerations in favour of the development are such as truly constitute very special circumstances so that the development can be permitted notwithstanding the importance given to the Green Belt. The realisation that the reference to weight is ultimately a metaphor highlights a practical difficulty in the approach for which Mr. Riley-Smith presses. How is the decision maker to decide what is equivalent to “substantial + substantial”? The Claimant envisages the balancing exercise being quasi-mathematical but if that is the appropriate exercise then paragraph 144 fails to provide the decision maker with guidance as to the values to be placed in the necessary mathematical calculations.
3. When paragraphs 143 and 144 are read together they can be seen as explaining that very special circumstances are needed before inappropriate development in the Green Belt can be permitted. In setting out that explanation they emphasise the seriousness of harm to the Green Belt in order to ensure that the decision maker understands and has in mind the nature of the very special circumstances requirement. They require the decision maker to have real regard to the importance of the Green Belt and the seriousness of any harm to it. They do not, however, require a particular mathematical exercise nor do they require substantial weight to be allocated to each element of harm as a mathematical exercise with each tranche of substantial weight then to be added to a balance. The exercise of planning judgement is not to be an artificially sequenced two-stage process but a single exercise of judgement to assess whether there are very special circumstances which justify the grant of permission notwithstanding the particular importance of the Green Belt.”

NPPF 145-146

R (Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2021] EWHC 2161 (Admin), Holgate J
Reuben Taylor KC appeared for the First Interested Party

“…in Green Belt policy some types of development are regarded as inappropriate if they would harm the openness of the Green Belt and/or conflict with the purposes of including land within it (paras. 145 and 146 of the NPPF). In those circumstances, the application of the “very special circumstances test” will also require that harm to the Green Belt to be included in the overall planning balance. There is no improper double-counting. The same factor is being assessed twice for two different and permissible purposes.” [197]