A government document that shapes planning decisions across England is unlawful, Friends of the Earth, said in a challenge today.
The campaign organisation went to the Royal Courts of Justice to argue that the revised National Planning Policy Framework (NPPF), issued in July 2018, should have been reviewed for its impacts on the environment.
Richard Kimblin QC, for Friends of the Earth, described the NPPF as:
“central to decision-making on planning and environmental protection.
“It is the hub, without which the wheel would not turn”.
“No assessment has ever been made of the environmental effects of the Framework. This claim is about that failure.”
There should have been a strategic environmental assessment (SEA) and a public consultation, he said. Without them:
“the plan is adopted blind, and without the advantage of those consultation responses. There is no consideration of whether the plan could achieve the stated aims in a better way. If an SEA is undertaken, the plan may well be significantly different.”
The revised NPPF, announced on the day MPs began their summer holiday, made important changes to the planning policy, including on onshore oil and gas.
Paragraph 209, for example, required mineral planning authorities to recognise the benefits of onshore oil and gas for energy security and “the transition to a low-carbon economy”. They were also required to put in place “policies to facilitate” the exploration and extraction of onshore oil and gas.
Before the revised NPPF was published, Friends of the Earth warned that an SEA was needed, the court heard.
Making his case against the Local Government Secretary today, Mr Kimbin said:
“It is plain that the Framework and its modification will have environmental effects which are potentially significant.
“Some may be beneficial. Some may be adverse. Both positive and negative effects are required to be assessed. It is not possible to say what the effects are, nor to gauge their significance, because that assessment has not been done.”
The case centred today on whether the NPPF met the requirements, under a European directive, for an SEA.
Mr Kimblin argued that it did because he said it was a plan or programme, required by legislation or regulation, that was likely to have significant effects.
He said the NPPF contained policies which were often included in development plans, the documents produced by local councils to inform their decision on planning applications. Development plans must also be consistent with the NPPF, he said.
He added that the NPPF was often the main decision-making tool when the development plan has little to say about a proposal. And the NPPF trumped when the development plan was inconsistent with the NPPF.
Rupert Warren QC, for the Secretary of State, rejected Friends of the Earth’s arguments, saying an SEA was not needed under the directive.
He described the NPPF:
“It is a high-level policy which does not pre-determine assessments of significant environmental effects in a discretionary planning-led system.
“It is procedural and falls outside the requirements of the directive.”
Mr Kimblin also argued that an SEA was needed because the NPPF set the framework for future development.
He said it established what he called “significant constraints”, such as Green Belt policy, restriction of development on ancient woodlands and controls on coal extraction.
It was a material consideration in considering planning applications, he said, adding:
“It guides decision makers on the weight to afford to various factors. It tells decision makers what factors it should pay specific regard to. It tells decision makers when something is not relevant, for example, when land cannot be considered previously-developed land.”
He added that it established “a significant body of ‘criteria and detailed rules’ sufficient to guide development decisions.”
Opposing Friends of the Earth, Mr Warren said:
“Whilst it 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.”
Mr Warren rejected the argument that the revised NPPF established a “significant body of criteria and detailed rules”.
The two sides also discussed whether an assessment of the NPPF would be possible or useful.
Mr Warren said:
“Any SEA of the revised NPPF would, in any event, necessarily be so high-level as to be impracticable or, if practicable, incapable of facilitating any meaningful analysis.”
But Nina Pindham, also for Friends of the Earth, said:
“Even if this is an issue, it is not an issue of the court. The court does not have to decide how an SEA should be carried out.”
Friends of the Earth said an assessment of the NPPF was of “great importance to the environment in England and to its proper land use planning.”
The organisation asked Mr Justice Dove to allow their challenge and order that the NPPF had been published unlawfully.
Mr Warren asked the court to refuse permission for the judicial review and dismiss the claim.
The case continues tomorrow (18 December 2018 at 9.30am at the Royal Courts of Justice. A separate challenge on the NPPF by the campaign group, Talk Fracking, is expected to begin tomorrow.
Reporting from this hearing was made possible by individual donations from DrillOrDrop readers