The role of planning guidance in a crisis

06 May 2020

Planning and Environment

By Jonathan Clay

Those of us who have to deal with guidance published by the Government in relation to land use planning ought to be leaders in the field of interpreting the guidance issued in relation to the Coronavirus crisis. It certainly has many of the same characteristics, such as changing without notice, being wide-open to different interpretation and riddled with exceptions.

The planning guidance produced by the Government has come in for a bit of a kicking in the courts recently. This has been for some of the same reasons that many are now critical of the COVID-19 regulations and guidance, governing what we are and are not expected to do during lock-down.

So, for example, consider the judgment of Mrs Justice Lieven. Although a judge in the Family Division, she is often called on to adjudicate in the Planning Court because of her experience as a planning barrister before promotion to the Bench.

In R (Solo Retail) v Torridge DC [2019] 489 (Admin), Mrs Justice Lieven said this of the National Planning Practice Guidance (NPPG):

In my view the NPPG has to be treated with considerable caution when the Court is asked to find that there has been a misinterpretation of planning policy set out therein, under para 18 of Tesco v Dundee. As is well known the NPPG is not consulted upon, unlike the NPPF and Development Plan policies. It is subject to no external scrutiny, again unlike the NPPF, let alone a Development Plan. It can, and sometimes does, change without any forewarning. The NPPG is not drafted for or by lawyers, and there is no public system for checking for inconsistencies or tensions between paragraphs. It is intended, as its name suggests, to be guidance not policy and it must therefore be considered by the Courts in that light. It will thus, in my view, rarely be amenable to the type of legal analysis by the Courts which the Supreme Court in Tesco v Dundee applied to the Development Policy there in issue.”

In Braintree v SSCLG [2018] EWCA Civ 610, Lord Justice Lindblom considered the question whether the NPPG was necessary for the purposes of clarification of the term ‘isolated’ referred to in the NPPF. The Court decided, perhaps damning it with faint approval, that the possibility of using the PPG for interpretation of the NPPF was not necessary in that case but “should not be excluded” as an interpretative aid where necessary.

Self-isolating in my bunker, and preparing an Opinion for a group of local authority clients who were having understandable difficulty with the meaning of the 2016 Self-Build and Custom Housebuilding Act 2015 and its sister Regulations 2016, I found myself reading the PPG’s advice on the application of the Act and the Regulations. For those who have not come across the 2015 Act, it is legislation that is intended to provide support to those who wish to build their own house and have registered as such. It imposes a duty on the LPA to grant sufficient permissions to meet their demand for sites.

It is intrinsically problematic that a permission for self-built housing, like all planning permissions, runs with the land, yet the legislation and policy which favours self-build and custom housing applications is directed to qualifying characteristics concerned with the identity of the applicant or first owner of the self-built house. Those characteristics are mostly irrelevant to land use issues, including one relating to their country of origin, in order to be a “self-builder” for the purposes of the Act.

Far from clarifying what is an already a peculiarly tricky piece of legislation, the PPG seems to bring into play all sorts of even more difficult interpretations. Try this, for example:

The Act does not distinguish between self-build and custom housebuilding and provides that both are where an individual, an association of individuals, or persons working with or for individuals or associations of individuals, build or complete houses to be occupied as homes by those individuals.
In considering whether a home is a self-build or custom build home, relevant authorities must be satisfied that the initial owner of the home will have primary input into its final design and layout.”

No guidance is provided as to what is meant by the term ‘initial owner’, nor is it clear how the LPA is to decide that the owner has had or will have ‘primary input’ (whatever that means) into the ‘final design and layout’. That is particularly problematic when what is to be applied for is not a finally-designed building but a vacant plot of land with basic services only.

Accurately defining (and therefore being able to identify) self-build units takes on particular importance given the duty in section 2A on LPAs to give “give sufficient development permissions in respect of enough serviced plots of land to meet the demand for self-build and custom housebuilding in the authority’s area arising in each base period”.

The duty itself raises a whole host of questions (e.g is it a target duty? How is the LPA to generate new permissions if there are not “sufficient”? What is the consequence of breaching the duty? How does the duty (and any breach of duty) relate to individual applications for planning permissions which include serviced plots) – but this is a topic for a further article!

Grappling with the meaning of the PPG in relation to five-year housing land supply for example, has become a specialism for planning lawyers and planning consultants now make a feature of it for special mention in their CVs.

Since Tesco v Dundee, the meaning of planning policy has been a rich seam for planning lawyers. One can only hope that the interpretation of guidance on how we are to behave during lock-down does not become our principal means of keeping the wolf from the door whilst the planning appeals system is in abeyance.