NPPF & PPG In Court

Hanging over me all week was a deadline for preparing a legal update about the NPPF. Then, thank you judges, just like London buses but with more barristers on board, along came three interesting cases.

Is the NPPF subject to the requirements of SEA?

The question as to whether the latest version of the NPPF required strategic environmental assessment was the question before Dove J in Friends of the Earth v Secretary of State (Dove J, 6 March 2019).

 

You will recall that requirements of the SEA Directive apply to plans and programmes which are “required by legislative, regulatory or administrative provisions” and which “set the framework for future development consent of projects”.

 

The Government argued that neither applied in the case of the NPPF. It was always going to be a stretch to argue that the, er,  Framework does not set the framework for the future development consent of projects and the judge wasn’t going to accept that. But he did conclude that due to the Framework’s curious, non-statutory, legal basis it could not be said to be required by legislative, regulatory or administrative provisions and therefore SEA was not required: “there is in reality nothing by way of any formal provisions which might be said to govern or regulate the production of the Framework“.

Incidentally, I had always assumed that fear of being caught by SEA requirements was one reason why the NPPF has remained so determinedly non-spatial but, on Dove J’s reasoning, even an NPPF with spatial policies would not require SEA.

Was consultation on the draft NPPF legally inadequate in relation to fracking?

The hearing in relation to Stephenson v Secretary of State (Dove J, 6 March 2019), a claim brought on behalf the Talk Fracking campaign group, immediately followed the Friends of the Earth hearing and one of its grounds (ground 3) was covered by the previous case. The other grounds focused on the new NPPF’s pro-fracking paragraph 209(a):

Minerals planning authorities should:
a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction
.”

Ground 1 contended that “the Defendant unlawfully failed to take into account material considerations, namely scientific and technical evidence, which had been produced following the adoption of a Written Ministerial Statement by the Secretary of State for Business and Energy and Industrial Strategy and the Defendant on 16th September 2015 (“the 2015 WMS”)

Ground 2 contended that “the Defendant failed, in publishing the policy in paragraph 209(a) of the Framework, to give effect to the Government’s long-established policy in relation to the obligation to reduce green-house gas emissions under the Climate Change Act 2008“.

Ground 4 contended that “the Defendant failed to carry out a lawful consultation exercise in relation to the revisions to the Framework which were published on 24th July 2018.”

Dove J started with ground 4, because “at the heart of the dispute” was the questions as to “what the Defendant was doing when incorporating paragraph 209(a) into the Framework or, more particularly in relation to Ground 4, what a member of the public engaging in the consultation process and reading the publicly available material as a reasonable reader, would have concluded the Defendant was doing“. The issues “cannot be disposed of by simply considering the Defendant’s private intentions“. In the documentation there was no suggestion that the merits or substance of the policy represented by the 2015 WMS were outside the scope of the consultation.

By contrast with what the reasonable reader would have discerned from the publicly available material, the Defendant had a closed mind as to the content of the policy and was not undertaking the consultation at a formative stage. The Defendant had no intention of changing his mind about the substance of the revised policy. Further, the Defendant did not conscientiously consider the fruits of the consultation exercise in circumstances where he had no interest in examining observations or evidence pertaining to the merits of the policy. This had the effect of excluding from the material presented to the Minister any detail of the observations or evidence which bore upon the merits of the policy. Given my conclusion as to what the reasonable reader would have concluded from the publicly available documentation the consultation exercise which was undertaken was one which involved breaches of common law requirements in respect of consultation and which was therefore unfair and unlawful.

Ground 1 accordingly also succeeded: it was unlawful to fail to take the Talk Fracking material into account in decision making as to the final form of the NPPF, given that it was clearly relevant to the questions posed. “The fact that the Defendant believed that he was taking a far more narrow and restricted decision from that which he had advertised to the public does not provide a basis for avoiding that conclusion.

Ground 2 failed, but on the basis of reasoning which may be helpful to the anti-fracking community, in that the judge accepted the Secretary of State’s submission that “in individual decisions on plans or applications the in principle support for unconventional hydrocarbon extraction, provided by paragraph 209(a) of the Framework, will have to be considered alongside any objections and evidence produced relating to the impact of shale gas extraction on climate change. These are conflicting issues which the decision-maker will have to resolve.”

The judge has not yet determined the appropriate relief (ie what should be done) to give effect to his judgment. But surely we are now likely to see further consultation as to paragraph 209(a) and potentially another tweaked NPPF in due course. NPPFs are also now coming along like buses.

What is the legal status of Planning Practice Guidance?

This question was relevant in Solo Retail Limited v Torridge District Council (Lieven J, 4 March 2019) as it went to complaints about the approach taken by a local planning authority to retail impact assessment, in a challenge by one value retailer to a planning permission granted to a competitor. The complaint was that the guidance in the PPG has not properly been followed.

Of course if there is doubt as to the legislative, regulatory or administrative basis for the National Planning Policy Framework, that doubt is accentuated in the case of the Government’s subsidiary Planning Practice Guidance.

The judge found that the NPPF and the local development plan were not prescriptive as to the form of retail impact assessment required to be carried out. The claimant therefore had to fall back on the detailed steps for assessment set out in the PPG.

However:

In my view the NPPG has to be treated with considerable caution when the Court is asked to find that there has been a misinterpretation of planning policy set out therein, under para 18 of Tesco v Dundee. As is well known the NPPG is not consulted upon, unlike the NPPF and Development Plan policies. It is subject to no external scrutiny, again unlike the NPPF, let alone a Development Plan. It can, and sometimes does, change without any forewarning. The NPPG is not drafted for or by lawyers, and there is no public system for checking for inconsistencies or tensions between paragraphs. It is intended, as its name suggests, to be guidance not policy and it must therefore be considered by the Courts in that light. It will thus, in my view, rarely be amenable to the type of legal analysis by the Courts which the Supreme Court in Tesco v Dundee applied to the Development Policy there in issue.

These points are illustrated the paragraphs of the NPPG that are most relevant in this case. Paragraph 015 says that “the impact test should be undertaken in a proportionate and locally appropriate way…” However, paragraph 017 says “The following steps should be taken in applying the impact test…”. Taken at face value these words would seem to suggest that the following elements are mandatory where there is a policy requirement for any form of impact test. However, in my view that cannot be the case. There is a judgement for the LPA as to what level of scrutiny of possible impact is appropriate in the particular circumstances of the proposal, taking into account the need to be proportionate. Paragraph 017 therefore cannot and should not be interpreted and applied in an overly legalistic way as if it was setting out mandatory requirements.”

A reminder not to interpret the PPG legalistically. There may be internal inconsistencies within it. Guidance means guidance.

Simon Ricketts, 9 March 2019

Personal views, et cetera

Back Yard Back Handers

The idea, set out in the prime minister’s announcement  in relation to the Shale Wealth Fund, of the planning system encompassing direct payouts to households affected by shale oil and gas proposals, is an eye-opener on various levels – particularly given the suggestions that this will not stop at shale.

I set out below some reasons why I believe it is a wrong move and/or will not work. 
However, the proposals don’t come entirely out of the blue. 
There has been a community engagement charter since June 2013 in relation to oil and gas from unconventional reservoirs  It includes commitments from the industry to:
“Provide benefits to local communities at the exploration/appraisal stage of £100,000 per well site where hydraulic fracturing takes place;

Provide a share of proceeds at production stage of 1% of revenues, allocated approximately 2/3rd to the local community and 1/3rd at the county level
Community benefit packages like this are not new. There is also a non-statutory process in relation to on-shore wind. Community Benefits From On Shore Wind Developments  published by DECC (as it then was) in October 2014, describes a voluntary protocol agreed by the on shore wind industry. It commits developers of onshore wind projects above 5 MW in England to provide a community benefit package to the value of at least £5000 per MW of installed capacity per year, index-linked for the operational lifetime of the project. There are equivalent schemes in Wales and Scotland. The guidance stresses that payments should not be taken into account by decision-makers in determining applications. There is much focus on identifying appropriate community bodies and working through how benefits can most be effectively used by the community, with no suggestion of the monies being able to be shared out for personal gain. 
With fracking, the potential move to individual payouts was flagged in January 2014. As part of announcements that local authorities would in 100% of business rates from fracking,  it was announced that the industry would further consult about its community benefits packages, “with options including direct cash payments to people living near the site, plus the setting up of local funds directly managed by local communities”. 
For an industry paralysed by opposition to its proposals for exploratory wells, let alone extraction, this is presumably a fairly desperate attempt to turn the tide of local opinion. But the implications of such a scheme would go way beyond energy policy. Again, extending such ideas to housing is not new. Then deputy prime minister Nick Clegg was reported in August 2013 as promoting the idea of payments for those affected by garden city proposals.
These are seven obvious concerns:
1. It won’t reduce the opposition
Objections are not necessarily limited to the immediate environs of the project. People have strongly held concerns about (in the case of fracking) the potential effects of shale oil and gas extraction on the environment and on climate change more generally. Those non-local objectors will not be “bought off” by any direct payment. 
Nor will local objectors, whose concerns are, it is to be assumed, strongly held and not necessarily swayed by cash. Indeed a December 2014 research report on public engagement with shale gas and oil commissioned by the previous Government would appear to support that view.  Chapter 5 addresses mixed reactions to community benefits packages: 
“The financial aspect of the package was met with discomfort for many, because it was seen to monetise the risk taken on by the community, and was thus seen as a bribe by some. The fact that money was offered was also seen to indicate the activity was extremely high risk and dangerous, as participants were unaware of money being exchanged in other situations. “

2. Contamination of the planning process

Regulation 122(2) of the CIL Regulations 2010 provides that
“A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a)necessary to make the development acceptable in planning terms;

(b)directly related to the development; and

(c)fairly and reasonably related in scale and kind to the development.”

It is of course a fundamental principle of the UK planning system that planning permissions cannot be bought or sold. However, let’s face it, our system is already influenced by financial considerations. For example:

– the Localism Act 2011 amended section 70 of the Town and Country Planning Act 1990 so as to require decision-makers to take into account in their decisions “any local finance considerations, so far as material to the application”

– local authorities are rewarded by Government for allowing homes to be built, by way of the new homes bonus and the business rates system increasingly encourages authorities that go for growth. 
– a proportion of CIL receipts is payable to parish councils, with little restriction in practice on what the monies can be spent on.
There is nothing necessarily wrong in my view with these interventions. Monies are directed to democratic bodies acting in the public interest. But we should be planning for the long term, for future generations rather than those who happen currently to live beside a major proposal. 
3. This is not about compensation for impacts
The VOA reported in August 2014   that there is no evidence that shale oil and gas exploration will affect house prices. I assume their view has not changed. 
The compulsory purchase compensation system provides protection for those whose land interests are taken or where, even if no land is taken, there is reduction in land value due to the physical effects arising from the operation of development projects. The common law of nuisance provides additional protections. 
4. It will be complicated
Who draws the boundary lines that determine who qualifies? What distinctions are there between home owners and tenants? Will there be minimum residency requirements? What about second home owners? What about clawback if people move out of the area within a short period of time, having accepted the payment? How will it be treated for tax purposes? All in all a lot of detail to be resolved and even the. There will inevitably be those who feel that they have been unfairly excluded. 
5. Slippery slope
Why not every form of development? This legitimises dialogue on planning being about how much should be paid to individuals affected, not what is in the public interest.
6. Dissipation of funds
The on-shore wind protocol contains good examples of how community benefits can deliver worthwhile projects, in the public interest. This opportunity is wholly lost with individual payouts.  

7. Whatever happened to localism?

The most depressing aspect of the announcement is that it appears to be a recognition or hunch that, for all the promotion of, initially, the Big Society, from 2010 and then neighbourhood planning, with the structures created by the Localism Act 2011, what drives behaviour is not community but me, myself, I. In order to persuade us each to allow development to proceed, apparently monies have to change hands, directed not to our parish council or other community group but directly into our bank accounts. 
Tell me if I have this wrong…

Simon Ricketts 8.8.16
Personal views, et cetera