Earlier this month, Friends of the Earth (FoE) announced that it is challenging the government over its failure to carry out a strategic environmental assessment (SEA) for its updated National Planning Policy Framework (NPPF), published in July. Through the High Court, the campaign group is seeking to force the government to carry out an SEA, consult the public again and then modify the framework based on the SEA findings. It also wants the NPPF to be declared to have been unlawfully adopted and published. But Friends of the Earth has emphasised that it is not seeking to have the framework quashed.
However, legal experts have said that, in practice, a declaration of unlawfulness would make little difference to a quashing order. Richard Harwood QC, of 39 Essex Chambers, said: "In practical terms, there seems to be no difference at all. If it's declared unlawful, the revised NPPF wouldn’t have any effect as government policy."
Harwood said there have been previous examples where development plans or policies have been declared unlawful by the courts and were subsequently treated as has having no legal status. He cited a 2011 Court of Appeal ruling that declared the government's demolition direction to be unlawful as an example.
He said: "If the NPPF was declared unlawful, it couldn’t be relied upon as published policy. At best, it would be treated as a draft. I wouldn’t attach a great deal of weight to draft policies because of the uncertainty about what could happen to it. You would have to go back to the 2012 framework."
Katherine Evans, a partner and head of planning at TLT Solicitors, also said there was no practical difference between a quashing of the framework and a declaration of unlawfulness. She said: "If Friends of the Earth get a declaration saying the NPPF is unlawful, then anyone who wants to challenge any aspects of the NPPF is going to argue that that element of it shouldn’t be given any weight. So what’s the difference in practical terms?"
However, Claire Dutch, head of planning at law firm Hogan Lovells, said: "Without a quashing order, the NPPF still stands. It’s then a question of what the government does next. Does it say: 'Business as usual, but we will do an SEA' or will it withdraw the NPPF temporarily to do an SEA before bringing it back in?".
Even if the claimants aren't seeking this outcome, Dutch and Evans said the court has the power to strike down the NPPF if it wishes. Dutch said: "If it thinks the challenge goes right to the heart of the legality of the NPPF, the court can quash the document. It's probably unlikely but the court can still do it." Harwood said: "I suspect the court would be more likely to quash the framework rather than make a declaration because it’s neater and clearer to do that, but it still amounts to the same thing."
Dutch said, in the event of the 2018 version being quashed, the government could republish a draft version while it carries out an SEA and a new consultation, so the policies have some material weight. Or, it could announce that planners should use the 2012 framework in the interim.
Harwood said he thought it would be unlikely that the court orders the government to carry out an SEA or to make modifications to the framework in light of the SEA's results. He said: "The court would decide whether what’s been done is lawful and say where it’s not been lawful. How the minister would then take that forward would be a matter for the minister."
He also said a likely key argument could be whether the NPPF constitutes a policy or a plan, as the SEA directive only covers what it describes as "plans" and "programmes" but does not impact on policies. "I suspect this argument will be debated in the NPPF case," he said.