Government defends NPPF against Friends of the Earth's High Court challenge

There is no 'legislative, regulatory or administrative provision' requiring a strategic environmental assessment (SEA) to be carried out on the new National Planning Policy Framework (NPPF), government lawyers have told the High Court as a legal challenge seeking to have the document declared unlawful opened.

London's Royal Courts of Justice: NPPF case opened this week
London's Royal Courts of Justice: NPPF case opened this week

Environmental campaign group Friends of the Earth is challenging the government over its failure to conduct a European strategic environmental assessment (SEA) while preparing the revised NPPF, which was published in July this year.

The group said it believes the lack of an SEA could mean the NPPF was adopted unlawfully. It has said it wants the NPPF to be declared unlawful by the High Court but not quashed.

Friends of the Earth has raised concerns about NPPF policies that it says supports shale gas fracking projects, and wants to see stronger support for wind power and a ban on coal extraction.

The legal challenge opened at the High Court  yesterday. Richard Kimblin QC, for Friends of the Earth, said the 73-page NPPF is "a tool which is used by the government to regulate land use".

The document "sets standards of protection, directs development to and away from particular areas, states what is important for decision makers to consider and provides a decision making presumption," he added.

The purpose of SEAs in respect of plans and programmes "is to permit informed decisions to be made in consultation with the public", including non-governmental organisations, like Friends of the Earth, which promote environmental protection.

He added: "Absent [of a] SEA, the plan is adopted without any analysis of the plan's environmental effects and without any opportunity for the public to be informed of and comment on those effects.

"Nobody has bothered to check, so the plan is adopted blind, and without the advantage of those consultation responses.

"There is no consideration of whether a plan could achieve the stated aims in a better way. If SEA is undertaken, the plan may well be significantly different."

And Kimblin told Mr Justice Dove: "No assessment has ever been made of the environmental effects of the framework. This claim is about that failure."

Rupert Warren QC, for the secretary of state for housing, communities and local government, said the NPPF "sets out the government's planning policies for England and how they are expected to be applied. It is thus a statement of policy of the very highest level."

The SEA directive only covers what it describes as "plans" and "programmes" but does not impact on policies, he argued.

Local authorities, when formulating development plans and reaching individual planning decisions, are obliged to take the NPPF into account as a "material consideration", Warren said. 

However, insisting that the SEA directive has no application on the NPPF, Warren told the judge there is no "legislative, regulatory or administrative provision" that required the government to introduce it.

Planning decisions are made locally, in accordance with local development plans, and the NPPF, as a policy document, does not "set the framework for future development consent of projects", he argued.

Friends of the Earth say the NPPF often plays a decisive role in the formulation of local development plans and, where the latter fail to meet a need or are silent about a particular proposal, the NPPF becomes "dominant" and fills the gap.

But Warren accused the pressure group of "making inaccurate claims about the necessity of the revised NPPF to the functioning of the domestic scheme of planning legislation".

The QC added: "Whilst the NPPF is a material consideration in plan-making and decision-taking, compliance with its provisions is not a requirement that must be met if planning permission is to be granted at the project stage.

"The revised NPPF does not establish a significant body of criteria and detailed rules. It is a statement of policy set at a very high level.

"It is inevitable that a high level policy document such as the NPPF will include numerous policy aims and that those aims will potentially compete with one another," he said.

But, he told the judge that it is at local level - where development plans are created and particular planning decisions are made - that the SEA Directive applies.

"The production of local planning policy is the point at which the balance is struck between potentially competing policy aims," he added.

The hearing continues. Mr Justice Dove is not expected to give his ruling on the case until the new year, according to Friends of the Earth.

Legal experts have suggested that a declaration of unlawfulness could, in a practical sense, mean the revised NPPF would effectively be quashed.

R on the Application of Friends of the Earth v Secretary of State for Housing, Communities and Local Government. Case Number: CO/3380/2018

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