The Crown Jewels Footnote

Philip Robson analyses an important High Court ruling on the operation of paragraph 14 of the National Planning Policy Framework (NPPF).

In the NPPF world, anyone involved in planning appeals on housing development will be very familiar with the parts of the framework dealing with the consequences of a council not having a 5-year supply of housing land.

For developers, this means meticulously going through the council’s objectively assessed need, examining the minutiae of each consideration with the aim of increasing need. Turning to look at each site the council claim to be available and suitable for development now, aiming to reduce the number of sites. For councils, the opposite is true. This has become the new reality of a sizeable number of housing appeals.

Understandably, more and more time is being taken at inquiries with increasingly forensic and technical evidence because both parties are well aware of the consequences of proving or dis-proving a 5-year housing land supply. The consequences of paragraph 14 of the Framework loom large over these debates.

That paragraph changes the usual planning balance of harms against benefits to “where the development is absent, silent or relevant policies are out-of-date, granting planning permission unless: any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or specific policies in this Framework indicate development should be restricted”. Under this paragraph the harms of a development have to “significantly and demonstrably” outweigh the benefits if development is to be refused.

Attached to the second sub-bullet point above (“specific policies…”) is footnote 9, which sets out a non-exhaustive list of policies to be included. Is this the Crown Jewels footnote, a means of getting off the hook of the “significantly and demonstrably” test?

The answer is, sort of.

How footnote 9 affects the operation of paragraph 14 was the subject of the recent judgment in Forest of Dean DC v SOSCLG & Anr [2016] EWHC 421 (Admin). Briefly, paragraph 14 was engaged and the parties accepted that the proposed development caused less than substantial harm to a heritage asset, therefore paragraph 134 was in play.

The first question for Mr Justice Coulson was – is NPPF paragraph 134 included in footnote 9 as part of the “policies relating to…designated heritage assets” and therefore a specific policy indicating development should be restricted in the terms of paragraph 14?

His unequivocal answer, accepting the approach of the Forest of Dean, was yes. The default setting of the Framework is the presumption in favour of sustainable development, Framework 134 is an example where this presumption does not apply unfettered and therefore it amounts to a restriction. Secondly, paragraph 14 refers to ‘restrictions’ rather than ‘refusal’, and so it is given a wide meaning. Thirdly, that if the only policy on heritage coasts (paragraph 114) is included in footnote 9 and is therefore a restriction, despite being in less onerous terms than paragraph 134, then paragraph 134 must also be a restriction as it is more onerous than paragraph 114. Fourthly, the Framework in the footnote does not distinguish the other policies on designated heritage assets (e.g. paragraph 133) and therefore the court should not do so.

The second question was whether one should import the significantly and demonstrably test into the words of paragraph 134. This was roundly rejected as not representing the words of the policy itself.

Finally, how does one go about making a decision where both NPPF 14 and a policy in footnote 9 are in play? The approach of Coulson J, which is arguably obiter, taking the lead from the Secretary of States, was to start by breaking down the paragraph into limbs 1 and 2. Limb 1 being the “significantly and demonstrably” test; and limb 2 as the “specific policies…” and footnote 9. A decision maker must first apply limb 2 and consider whether a policy included in footnote 9 is engaged under the second sub-bullet point (specific policies….). If the proposed development meets the test in the specific policy, then one goes to the “significantly and demonstrably” test in limb 2. If the proposed development fails the test in the specific policy, then the application should be refused – as seen in the Secretary of State’s called-in decision in Keele University (APP/p3420/A/14/2219380). There is no need to move on to limb 1.

This means that, where one has less than substantial harm to a heritage asset, unless the harm to the asset outweighs all of the benefits of the proposal, then one moves to the “significantly and demonstrably” test. This may seem to be unlikely, but not impossible, and it does give councils a glimmer of hope – particularly given the judgments in Barnwell Manor and Forge Field.

If one of the other policies in footnote 9 is engaged, that have more restrictive wording (other than heritage coasts), then councils may have more than just a glimmer of hope in being able to refuse unsustainable housing development when they don’t have a 5-year supply of land.

Is this the end of the matter? I think not. As stated above, the approach of Coulson J to the operation of paragraph 14 and footnote is arguably obiter as he was not invited to decide this – recognised in his comments at paragraph 46 of his judgment. It is possible to see arguments being constructed that his interpretation is not correct – why is the word “or” included between the first and second sub-bullet points?; does Coulson J’s approach really reflect the way in which the policy is drafted?; does this approach reflect the objectives of the NPPF to protect significant historical and environmental assets?. The second issue that is likely to arise at some point is, because footnote 9 is not an exhaustive list, what other policies might be included.

Overall, this judgment provides some clarity on a familiar policy, however I don’t think this will be the last we see of this in the courts.

Philip Robson is a Barrister at St John’s Chambers, Bristol. He appeared for the Forest of Dean in the case in this article, as junior to Peter Wadsley of the same Chambers. Philip can be reached This email address is being protected from spambots. You need JavaScript enabled to view it..