Expletive Deleted: Revising Policy

I learned today from an Independent piece (27 January 2018) that “an “expletive” originally meant any unnecessary word or phrase used to fill out a sentence. It comes from the Latin ex-, out, and plere, fill, and came to mean a swear word only in the 19th century.”
This coincides with what I was going to cover in this blog post, namely the need for more precise drafting of policy, particularly in relation to the NPPF, and particularly if the courts continue with their present approach to policy interpretation disputes.  

When the Commons CLG Select Committee reported in 2011 on its inquiry into the draft of what became the current NPPF, its conclusions included this passage:
“Brevity and simplicity are to be applauded in any document. However, we consider that the NPPF does not achieve clarity by its brevity; critical wording has been lost and what remains is often unhelpfully vague. If the NPPF is to be a document that assists with practical decision-making, rather than a lawyers’ charter or an easy-to-read guide to the planning system, its drafting must be more precise and consistent, and sufficiently detailed to enable local authorities to write their own Local Plans. The Government should carefully consider the alternative drafts, submitted by many organisations as part of DCLG’s consultation, in order to produce a tighter, clearer document, and should not make a fetish of how many pages it is. Examples of such words and phrases needing tighter definitions in the NPPF include: ‘significant weight’; ‘great weight’; ‘substantial weight’; ‘considerable weight’; ‘significant flexibility’; ‘a high degree of certainty’; ‘sustainable economic growth’; ‘absent’; ‘silent’; ‘indeterminate’; ‘out-of-date’; ‘certificate of conformity’, ‘where practical’; and ‘where reasonable‘.”
Whilst changes were made in the final 2012 document, too much was left loose. In retrospect, there was an obvious reason: the one document was trying to provide at least three separate things:
– political advocacy as to policy outcomes sought by the Government

– a precise framework for local authority policy making and decision taking

– a significantly condensed version of numerous previous policy documents

It may be fine and convenient to use loose, sometimes emotive (“the golden thread”) or purely exhorting language for a document with solely that first role, but certainly not the second or third, where precise words matter.  
It is also a mistake to imagine that, in order to be more precise, a document has to be longer. In fact there are far too many adjectives and adverbs in the current NPPF and I would be red-pen brutal. Is each necessary? For instance, what is the difference between “evidence” and “compelling evidence” (para 48), “positively seek” vs “seek” (para 14) or “significantly and demonstrably outweigh” vs “significantly outweigh” (also para 14)?
If the word is necessary, is its meaning sufficiently defined or calibrated? By this I mean, what precisely is meant by, for instance, “substantial” (used 11 times), or “significant”/”significantly” (used 27 times) or “exceptional” (used 9 times)? If the answer is that this is for the LPA to determine, say that. However, I am not sure that this is often what is meant and the participants descend into trying to weigh the indeterminate presumption in favour of the plan in section 38(6) of the 2004 as against various matters which are either given an uncertain degree of additional weight by national policy or by statute (for instance the unhelpfully differing terminology in relation to specific duties on decision makers in relation to listed buildings, conservation areas and AONBs in sections 66(1) – “special regard” – and 72(1) – “special attention” – of the Listed Buildings Act 1990 and section 85(1) – “regard” – of the Countryside and Rights of Way Act 2000 respectively). 
Apples with pears perhaps but contrast the analysis of proposals as against policy with the more methodical and internally consistent categorisation of effects in the environmental impact assessment process. Through the good work of IEMA and others, standardised terms have recognised meanings. We need to work towards that in relation to for example judging harm to designated heritage assets for the purposes of paragraphs 132 to 134 of the current NPPF – practical consequences flow from whether there is likely to be “harm” and whether any harm is likely to be “substantial” or “less than substantial”, with practitioners recognising different degrees of harm within those policy categories. 
This doesn’t just matter to lawyers. Jonathan Edis and Elizabeth Stephen in A Consultant’s view of the NPPF (Papers from the Institute of Archaeology, 2013):

“The problem is that we know there is harm, but we are not given the words to describe it and convert it into a form where it can be put into the planning balance consistently. We know from recent appeal decisions that less than substantial harm can include levels of impact that are also described as significant and considerable, which concentrates a disconcerting number of similar adjectives in a small conceptual space. Lower down the scale we also know that less than substantial harm can accommodate effects which are described as minor, which is easier to swallow. However, the NPPF provides no framework within which to rank these terms, and there is no indication of how to describe the lowest level of harm to be considered under paragraph 134 of the NPPF”

Definition doesn’t necessarily mean greater length or making the document less readable. The existing glossary could be expanded, or there could be a clearer read-through to the relevant passages in the Planning Practice Guidance (with hyper-text links in the NPPF to all defined terms). But in some instances, the policy wording in the NPPF could itself be made more specific. Indeed this is what the Government has consulted upon in relation to the relevant test for amending green belt boundaries: the guidance in paragraph 83 that “Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan” is proposed (see paragraph 1.39 of the Government’s February 2017 Housing White Paper) to be replaced with specific criteria that are to be applied. 
The problems arising from loose wording are evident from the extent of litigation that has revolved around specific words and phrases of the NPPF, litigation which has obvious costs, both direct (for the participants) and indirect (for society and the economy). 
In Suffolk Coastal (see my 5 May 2017 blog post NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?), Lord Carnwath described the NPPF as “a simplification of national policy guidance, designed for the lay-reader“, but it can’t just be that. (Indeed for the lay-reader I suspect it is hopelessly confusing and raises all sorts of unjustified expectations). It does need to have some legal precision if it is intended to have practical effects. Lord Reed in Tesco Stores Limited v Dundee City Council states that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context“. This is an interpretative role that the courts cannot step back from, although being careful to recognise that, as stated by Lord Carnwath in Suffolk Coastal, “the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two.”

Does Government analyse the extent to which litigation could have been reduced by clearer policy wording? Why for instance was the Suffolk Coastal saga not stopped well before the Supreme Court by a ministerial clarification of how paragraphs 14 and 49 are intended to work?

The courts are also placed in a bind. They are rightly turned to for resolution of disputes as to what the words actually mean, but they strain against overlaying their own interpretation upon the words themselves and from interfering with the application, as opposed to interpretation, of policy. Challenges are routinely being knocked back on the basis of “excessive legalism” but the disputes arising are often not in truth “legalistic”, they are (in line with the Tesco case) disputes as to what the policy in question actually means, which surely matters. Is it acceptable (from the perspective of fairness and predictability) or sensible (from the perspective of the Government achieving its desired policy outcomes and reducing delays caused by appeals) to have vague statements in policy that can be read in different ways (and which the courts will refrain from defining)?
The distinction between policy interpretation and policy application can be difficult to make. It often flows only from a decision by the court as to whether the decision-maker’s interpretation was correct, for which the applicant first has to litigate. For instance, this week the Court of Appeal in Jelson Limited v Secretary of State (19 January 2018) declined to quash an inspector’s decision on the basis of an alleged incorrect approach to arriving at a figure for objectively assessed housing needs in the relevant area. Christopher Lockhart-Mummery QC on behalf of Jelson pointed to various alleged mistakes in the inspector’s approach as against the requirements of the NPPF. 

“As a result, Mr Lockhart-Mummery submitted, the inspector failed to approach her assessment of the “full need” for affordable housing as she should have done, and failed to identify, with “clarity and precision”, a robust figure for the “full, objectively assessed needs” for housing in the council’s area. 

I cannot accept those submissions. They collide with the most basic principle in the court’s jurisdiction to review planning decisions, which is that matters of planning judgment are not for the court, but for the decision-maker – here an inspector appointed by the Secretary of State – and that the decision-maker’s exercise of planning judgment will not be overturned except on clearly demonstrated public law grounds.”
The court held that the inspector had not misunderstood the approach to be taken and that her conclusions were therefore beyond challenge. 
Paragraphs 23 and 24 of Lindblom LJ’s judgment are important:
“As this court has emphasized in Oadby and Wigston Borough Council, against the background of its earlier decisions in Hunston Properties Ltd.and Gallagher Estates Ltd., national policy and guidance does not dictate, for decision-making on applications for planning permission and appeals, exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need against which to test the relevant supply (see paragraphs 35 and 36 of my judgment). In this respect, government policy, though elaborated at length in the guidance in the PPG, is not prescriptive. Where the Government wanted to be more specific in the parameters it set for decision-makers considering whether a local planning authority could demonstrate the required five-year supply of housing land, it was – in laying down the approach to calculating the supply of deliverable housing sites in paragraphs 47 and 49 of the NPPF, and, in particular, in carefully defining the concept of a “deliverable” site (see my judgment in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, at paragraph 36). 

Responsibility for the assessment of housing need lies with the decision-maker, and is no part of the court’s role in reviewing the decision. Although the decision-maker is clearly expected to establish, at least to a reasonable level of accuracy and reliability, a level of housing need that represents the “full, objectively assessed needs” as a basis for determining whether a five-year supply exists, this is not an “exact science” (the expression used in paragraph 2a-014-20140306 of the PPG). It is an evaluation that involves the decision-maker’s exercise of planning judgment on the available material, which may not be perfect or complete (see the judgment of Lang J. in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), at paragraph 27). The scope for a reasonable and lawful planning judgment here is broad (see the judgment of Hickinbottom J. in Stratford-on-Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin), at paragraph 43). Often there may be no single correct figure representing the “full, objectively assessed needs” for housing in the relevant area. More than one figure may be reasonable to use. It may well be sensible to adopt a range, rather than trying to identify a single figure. Unless relevant policy in the NPPF or guidance in the PPG has plainly been misunderstood or misapplied, the crucial question will always be whether planning judgment has been exercised lawfully, on the relevant material, in assessing housing need in the relevant area (see paragraphs 32 to 38 of my judgment in Oadby and Wigston Borough Council). A legalistic approach is more likely to obscure the answer to this question than reveal it (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council).”

This reflects what Lindblom LJ stressed in Mansell v Tonbridge and Malling Borough Counci (Court of Appeal, 8 September 2017):

“The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide planning lawyers with a “doctrinal controversy”. But even when the higher courts disagree as to the meaning of the words in dispute, and even when the policy-maker’s own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain – because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right (see paragraph 22 of my judgment in Barwood v East Staffordshire Borough Council). That of course may not always be so. One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also – however well or badly a policy is expressed – that the court’s interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect – in every case – good sense and fairness in the court’s review of a planning decision, not the hypercritical approach the court is often urged to adopt.”

But “excessive legalism” is in itself a value-laden term. What is an acceptable level of “legalism”? What is the difference between correct legal interpretation and unacceptable legalism? Is legalism sometimes excessive even if it is based on a correct legal interpretation?
We have seen a similar approach by the courts in the retail planning area, where there is still much genuine uncertainty as to the proper application of the sequential test and specifically as to the flexibility required of the applicant in looking for potentially more central locations (NPPF, paragraph 24). I referred in my blog post Town Centres First? Two Recent Decisions (22 December 2017) to words of caution by Ouseley J, in refusing permission in relation to the Tollgate Colchester challenge) as to the dangers of relying too heavily on judicial interpretation of policy. We have now obtained a transcript of his judgment (contact me if you would like a copy). It includes this passage:

“I simply make this word of warning in the light of the decision I have come to, which I will shortly reveal, that what I said in Aldergate Properties also comes with a warning I gave in Aldergate Properties, that the language that the court uses to explain what a policy means in a particular context is not a substitute for the words of the policy itself, which fall to be construed and then applied in relation to the particular circumstances at issue. The words of para.24 are very simple but are intended, however, for application in a wide variety of circumstances, and no one phrase is necessarily apt for application, still less as a substitute, in all the circumstances. I had also intended by the use of the word “broad” and “approximate” something a little more flexible than the word “closely similar” as a substitute might have indicated.”

That may sound sensible, but the words of the policy allow for differing interpretations. How does one determine the appropriate interpretation for the specific circumstances and is the applicant and local community alike in the hands largely of the decision-maker? Is that the latitude the Government intended to give?
Whatever emerges as the draft revised NPPF really needs to be stress-tested and amended accordingly. Which are the words and phrases over which we will all inevitably fall out and how to lance those disputes now by a bit more clarity, rather than in court or at planning appeal? What is the Government willing to leave to authorities and inspectors to work out? I am not necessarily suggesting a longer document but certainly delineation between supporting explanatory test and policy; a more rigorous approach to defined terms, and an adjectival haircut. 
Simon Ricketts, 27 January 2018
Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only. View all posts by simonicity