Can the NPPF be used to encourage better design? A look at a recent High Court decision…

by Laura Dobie

A recent High Court decision has significant implications for interpreting the design policies in the National Planning Policy Framework (NPPF) and the National Planning Policy Guidance (NPPG).

Handing down the decision in Horsham District Council v. Secretary of State for Communities and Local Government (1), Barratt Southern Counties Limited (2) on 23rd January 2015, Mr Justice Lindblom stated “It is not a general principle in planning law that an acceptable proposal for development should be turned away because a better one might be put forward instead”, dismissing the notion that this principle had not persisted with the introduction of the NPPF.

The case revolved around the question of whether an inspector had failed to take account of whether a better designed scheme could be conceived for a development site.

The Court dismissed an application under section 288 of the Town and Country Planning Act 1990 by Horsham District Council for an order to quash the decision of the inspector – appointed by the first defendant, the Secretary of State for Communities and Local Government –  to allow the appeal of the second defendant, Barratt Southern Counties Limited (“Barratt”), against refusal of planning permission for a development of 160 dwellings on land to the north of West End Lane in Henfield, West Sussex.

The Council had contested the grant of planning permission. During an inquiry the council submitted that the proposed development was a poor design which obscured views of the landscape, that a well-designed scheme should contain view corridors to retain these important views, and that it was fundamental to the principles in the NPPF regarding good design and the need to incorporate development into the character of the area, that such a scheme should preserve these views.

The inspector concluded that the likely “adverse environmental effects” of the proposed development were “limited” and did not outweigh “the considerable social and economic benefits” with respect to the early provision of new homes in circumstances of a local shortfall. He considered that policy in the NPPF did not indicate that the development should be restricted, and that the development would therefore be “sustainable”, and “the presumption in favour of such development should be applied”.

The Council argued that the inspector was not entitled to grant planning permission for Barratt’s proposal while it was still possible for a scheme to come forward in which long views from the site would be better protected, in light of policy set out in paragraph 64 of the NPPF that “permission should be refused for development of poor design that fails to take the opportunities available for improving the character and quality of an area and the way it functions.”

In his ruling, Mr Justice Lindblom stated that the NPPF does not say that a proposal which does not take every conceivable opportunity to enhance the character and quality of an area, or which does not deliver as well in this respect as a different proposal might have done, must therefore automatically be rejected.

He noted that the inspector focused on the policy in paragraph 64, as well as the wider policies on the design of development within which that paragraph is set, and that he exercised his own judgment on the issues relating to “good design” and “poor design” in light of these policies, concluded firmly that the proposal was not of “poor design”, and brought that conclusion into the comprehensive assessment of the planning merits on which he based his decision.

Referring to the decision in First Secretary of State and West End Green (Properties) Ltd. v Sainsbury’s Supermarkets Ltd., Mr Justice Lindblom stated that in this case, the fact that an alternative approach could have been adopted in the design of the development, and that this could have maintained some views from the site which would have been obscured by Barratt’s development, did not mean that the design of the proposal the inspector was considering contravened government policy in the NPPF.

The judge went on to state that the inspector was entitled, and in fact, required, to exercise his own judgment on whether the scheme constituted poor design under the NPPF, and that he did so in an entirely lawful manner, applying NPPF policy appropriately. He noted that, “It may be that the council disagrees with him, but such disagreement is not ammunition for a legal challenge.”

The Court also reiterated the principle that an application under section 288 of the 1990 Act does not afford “an opportunity for a review of the planning merits” of an inspector’s decision.

This case indicates that an acceptable scheme cannot be rejected to encourage an improved scheme, given the design policies of the NPPF and the NPPG.

Full details of the final judgement are available here.

October issue of SPEL Journal (Scottish Planning & Environmental Law)

SPEL 165The Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country.

The latest edition of SPEL includes articles focusing on:

Key court cases examined in the October edition include:

It also looks at proposed planning controls for payday lending and betting offices; and features a KnowHow article on amenity notices.

SPEL was launched in 1980 as ‘Scottish Planning Law & Practice’, to be a journal of record of Scottish planning. When it became apparent that the emerging field of environmental law was strongly linked to land use planning, the name of our journal changed to reflect this.

Written by a wide range of subject experts, SPEL Journal includes accessible commentary on topical subjects and current issues; details of new legislation and significant court cases; expert comment on key planning appeal decisions, government circulars and guidance; as well as notes about ombudsman cases and book reviews.

SPEL Journal is read by decision makers in Scottish planning authorities, planning law practices, planning consultancies, architects, surveyors, civil engineers, environmental managers and developers across Scotland. It is also valued by many practitioners outside of Scotland who need to keep abreast of developments.

An annual subscription to SPEL Journal is £145. For further details or a sample copy, please contact Christine Eccleson, SPEL Journal’s Advertising Manager, on 0141 574 1905 or email christine.eccleson@Idoxgroup.com.

Meeting ambitious targets: Scottish Planning & Environmental Law conference 2014

SPEL Conference brand image

There’s less than two months to go until this year’s Scottish Planning and Environmental Law conference so we thought we’d flag up some of the expected highlights. We’ve been running the SPEL conference for nearly 20 years and in this time its gained a reputation for being a forum for open and critical debate about the operation of the planning system in Scotland.

This year’s conference focuses on the theme of “meeting ambitious targets”. Scotland has some of the most ambitious targets in Europe – if not the world – when it comes to addressing climate change issues. Like the rest of the UK, Scotland is also facing challenges around ensuring adequate housing supply, especially affordable housing.

We expect that the conference will provide an ideal opportunity for discussing the implications of recent decisions on key renewable energy applications, as well as the intersection of the planning system with the housebuilding industry.

As usual we will also be reflecting on national planning policy, assessing the potential impact of NPF3 and Scottish Planning Policy on planning outcomes and performance, three months after they were laid before Parliament.

The programme features a broad range of speakers, bringing perspectives from the private sector, local government planning, academia and central government to bear on the issues.

Key speakers include:

  • Professor Greg Lloyd, Head of School of the Built Environment, University of Ulster
  • John McNairney, Chief Planner, The Scottish Government
  • Lindsey Nicoll, Chief Reporter, Directorate for Planning & Environmental Appeals
  • Nick Wright, Nick Wright Planning and Junior Vice Convenor, RTPI Scotland
  • James Findlay, Advocate (QC England and Wales), Terra Firma Chambers
  • Michael McGlynn, Head of Planning & Building Standards Services, South Lanarkshire Council

We’re also delighted that Rt. Hon Sir Menzies Campbell will be chairing the conference for us.

If you’re interested in planning or environmental law in Scotland then SPEL 2014 is the perfect chance to hear about the latest developments and network with others.

 

Note about the conference:

The 2014 Scottish Planning and Environmental Law conference is on 24 September at The Teacher Building in Glasgow.

The full conference programme and booking form are available here.

June issue of Scottish Planning & Environmental Law out now

train tunnel

The Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country. Continue reading

The latest in Scottish Planning & Environmental Law

April issue of SPEL Journal (Scottish Planning & Environmental Law) out now

by Laura Hughes

The Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country. Continue reading

Scottish Planning & Environmental Law – February

by Laura Hughes

The Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country. Continue reading