Friends of the Earth Ltd v Secretary of State for Housing, Communities and Local Government – Town and country planning – National Planning Policy Framework – Strategic environmental assessment – Claimant challenging decision of defendant secretary of state to issue revised version of National Planning Policy Framework – Whether defendant erred in publishing revision without strategic environmental assessment – Claim dismissed
In March 2012 the defendant published the first edition of the National Planning Policy Framework (NPPF). By then planning policy issued by central government had been a feature of the planning system, and a material consideration in plan making and decision-taking, for very many years. The defendant determined over the course of time that it would be necessary for the NPPF to be reviewed and revised. A consultation draft of a revised NPPF was put out for consultation and on 24 July 2018 the revised version was published.
The claimant contended that there was a legal flaw in the defendant’s decision to publish the NPPF in that it had not been the subject of strategic environmental assessment (SEA) pursuant to the EU Directive 2001/42/EC and the Environmental Assessment of Plans and Programmes Regulations 2004 which transposed the Directive into domestic law.
The essence of the defendant’s case was that, in accordance with the provisions of the Directive, the NPPF was neither “required by legislative, regulatory or administrative provisions” nor did it “set the framework for future development consent of projects” and therefore it was excluded from the requirement for SEA. The claimant argued that on the proper construction of the Directive, bearing in mind the role that national policy played in the statutory framework, both elements of the Directive, were made out. The NPPF was a “plan or programme” within article 2(A) of the Directive and should properly have been the subject of SEA prior to its adoption.
Held: The claim was dismissed.
(1) The system of control regulating the development and use of land, the planning system, was a comprehensive statutory code. Section 70 of the Town and Country Planning Act 1990 required regard to be had to “any other material considerations” by virtue of section 70(2)(c). Section 38(6) of the Planning and Compulsory Purchase Act 2004 similarly required regard to be had to material considerations when decisions were reached in relation to applications for planning permission. It was beyond argument that the NPPF was such a material consideration to be taken into account.
(2) In evaluating whether or not the NPPF was properly within the Directive’s definition of a “plan or programme”, it was necessary to look at article 2(a) and article 3(2)(a) together. Although issues raised by those provisions ran together they contained individual ingredients which, whilst they needed to be understood in the context of each other and the Directive as a whole, nevertheless had to be satisfied before a measure could come within the scope of the definition. The Directive had to be examined bearing in mind its wide scope and broad purpose. That purpose included the importance of integrating environmental considerations into the preparation of plans and programmes through systematically accounting for their likely significant environmental effects. In the light of the fact that definitions were provided within article 2(a) and specific provisions were made as to the scope of the direction in article 3(2)(a), the application of those specific provisions to a new measure had to be undertaken to determine whether a SEA was required by the Directive. Nonetheless, the case law both in the CJEU and at the UK level made clear that not everything that might be a measure capable of causing significant environmental effects fell within the definition. The NPPF was not a measure required by legislative regulatory or administrative provisions. There was in reality nothing by way of any formal provisions which might be said to govern or regulate the production of the NPPF.
(3) The fact that the NPPF was a material consideration in the planning system did not assist the claimant. The role the NPPF played did not give rise to any legislative or administrative provision regulating its production. In the absence of the NPPF, the remaining development plan policies and material considerations would have to be evaluated in order to resolve the equation of whether or not planning permissions should be granted. Therefore, there were no specific statutory or administrative provisions which governed or regulated the procedure for preparing or adopting national planning policy in the form of the NPPF. The NPPF was a voluntary measure, promulgated pursuant to an express or implied power but not produced as a result of any legislative or administrative provisions which regulated or determined the procedure for preparing or adopting it, The NPPF fell outside the definition of a plan or programme which would be the subject of SEA.
(4) The subject matter of the NPPF embraced the vast majority, if not all, of the topics covered in article 3(2)(a) of the Directive. There were features of the NPPF which supported the contention that it did in various respects contain a “a significant body of criteria and detailed rules” intended to have an impact on the scale, location and design of future development proposals. In examining the detailed content of the NPPF there was a clear case to be made that it fell within the language of article 3(2)(a) in setting the framework for future development consent of projects. The fact that it was a material consideration which a decision-maker would have regard to, and ascribe weight to, in reaching a balanced judgment on the merits of a proposal, did not affect that conclusion. Although the provisions of the NPPF were not binding but were rather policy to which weight needed to be ascribed by the decision-maker, bearing in mind the nature of the document as a suite of policies produced by the member of the executive with specific responsibility for the planning system, the NPPF was clearly a consideration of some importance. It set a very firm context for decisions to be taken in respect of the green belt. However, in the final analysis, the Directive did not apply to the NPPF. It was not a plan and programme since it did not fall within the definition provided by the Directive.
Richard Kimblin QC and Nina Pindham (instructed by Friends of the Earth Ltd) appeared for the claimant; Rupert Warren QC and Heather Sargent (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
