Recent decisions from the Court of Session confirm the correct approach to interpreting the policies in National Planning Framework 4.
Legal principles
The legal principles for interpreting development plans are well-known. In brief:
- Unduly complex or strict interpretations should be avoided
- The words of a policy should be understood as they are stated, rather than through gloss or substitution
As ever, even well-known principles are not necessarily easy to apply.
Housing
In the Miller Homes case, the Court dismissed the challenge to the Ministers' decision to refuse the Mossend housing appeal.
They rejected the contention that the operation of policy 16(f) is postponed until new style LDPs are in place, as there is nothing in statute, policy or guidance to suggest that.
The Appellants had contended that policy 16(f) depended on the existence of tools and concepts which would only come into existence once a new-style LDP had been implemented. They noted there is nothing in NPF4 or elsewhere to suggest the policy is intended to apply before the preparation and adoption of new style LDPs. The Court described that analysis as untenable, as it inverts the proper approach to interpretation of policy.
The Ministers had argued that policy 16(f) was capable of permitting release of unallocated land for housing in the context of old-style LDPs, eg. delivery of less than 50 affordable homes. The Court acknowledged that it was only part of policy 16(f) - (iii)(first bullet) – that cannot operate without the provision of a pipeline established with a delivery programme.
The implications of this decision for housing sites are discussed in Elaine's blog on Policy 16(f) of NPF4 – the Miller Homes Mossend appeal decision.
Retail
In the Tesco case, the Court reduced the decision of Perth and Kinross Council to grant planning permission for an Aldi store in Perth.
The first issue was the meaning of policy 28(a). It indicates when "new retail proposals" will be supported. The Council argued that did not apply to the proposed development, because it is a relocation, not "new retail". The new store (1,884 sq.m. gross) is to be a direct replacement for an existing store (1,173 sq.m. gross).
The judge rejected that argument as an "overly complex construction". It would also be inconsistent with the stated policy intent and policy outcome, as retail developments which were not "new" would not require to conform to policy 28(a)(i) to (iii). The plain meaning of the words is that "new" simply describes the retail proposals which are to be considered.
The other issue was the meaning of “Proposals for new small scale neighbourhood retail development will be supported…" in policy 28(c). The judge interpreted the phrase to require the development to be both small scale and a neighbourhood development.
The Council had argued it could be interpreted to include a small-scale addition to a pre-existing retail development. The judge disagreed, because it is the development as a whole which would be "neighbourhood", not just the net increase. The Council's interpretation depended on the sort of gloss or substitution which was to be avoided. The Council had therefore failed properly to interpret the policy.
Biodiversity
In the Wildcat Haven case, the issue was the meaning of "fully mitigated in line with the mitigation hierarchy", in policy 3(b)(iii).
The petitioners argued this required the decision-maker to adopt a sequential approach to consideration of mitigation measures, in accordance with the mitigation hierarchy.
That approach was rejected by the judge, on the grounds that it was not supported either by the language of the policy, or the context in which NPF4 sits. No intention to make a considerable change in the significance of the mitigation hierarchy had been heralded in any discussion or consultation leading up to the introduction of NPF4. Also, there is a disconnect between that interpretation and the legal requirements for provision of information in the EIA Regulations. Finally, the very nature of a policy document such as NPF4 made it unlikely to impose such a stringent requirement.
The judge's decision has been appealed.
Comment
Two broad points arise from these decisions.
First, NPF4 is new. It contains significant changes to planning policy – in Miller Homes, the Court noted the SPP housing policies "have been largely swept away". That makes it much easier to applying the legal principle that the words of a policy should be understood as they are stated.
Second, does the Tesco case show the dangers of trying too hard to find compliance with the development plan? As the Court noted in Miller Homes, there can be circumstances where an application could be granted despite the development being contrary to the development plan.
There is perhaps an awareness of this sort of danger in recent section 36 decisions: rather than argue the Shetland and Devilla battery storage projects comply with policy 3 biodiversity, the Ministers concluded the projects complied with NPF4 when read as a whole.
Do these decisions suggest decisions taken by the Ministers on NPF4 policy grounds are more likely to be upheld? Of the three decisions, the two taken by the Ministers were upheld, and the one taken by the planning authority was quashed.
It is wrong to conclude that shows a reluctance to overturn the Ministers' interpretation of their own policies. The legal principle is objective – the words of the policy should be understood as they are stated. There is nothing in the judgments to suggest extra weight was given to the Ministers' arguments because NPF4 is their document.
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