The National Planning Policy Guidance and mandatory requirements

A High Court judge has handed down an important judgment on the Government's National Planning Policy Guidance (NPPG). Charles Streeten sets out the key findings.

Mrs Justice Lieven has handed down judgment in R (Solo Retail) v Torridge DC [2019] 489 (Admin). A copy of the judgment is available here.

The claimant operates a large out of town retail outlet. It judicially reviewed the grant of planning permission for a 32,500sqft rival retail outlet, B&M Stores, in a neighbouring location. 

The claim was brought on the basis that the developer's retail impact assessment ("RIA") had failed properly to assess the convenience element of the proposed new store, and that the council had failed properly to condition that element of the scheme.

In particular, the claimant relied on the fact that the emerging local development plan, which had been examined and found sound but not adopted, required a retail impact assessment of development in excess of 250sqm to support the submission that the developer had been required to carry out a "full RIA" of the 314sqm convenience element of the scheme.

Permission was granted in December by Mrs Justice Elizabeth Lang.

Following a final hearing, however, Lieven J dismissed the claim. In doing so she found that the claimant's case was reliant on the apparently mandatory prescription for a RIA set out in the PPG. In the apparent absence of any relevant case law regarding the status of the PPG, Lieven J accepted the submissions of the Interested Party and rejected a mechanistic application of the guidance contained within it, stating:

"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."

Somewhat surprisingly, this is the first judgment to consider the proper approach to the PPG in any detail. The court's judgment reflects what all practitioners know; the PPG is intended to be guidance rather than a definitive statement of government policy. It is a less formal document than the NPPF and should be read in that context. Nevertheless, the judgment will be important in considering how to approach apparently mandatory requirements contained within the PPG.

Charles Streeten is a barrister at Francis Taylor Building. He acted for the successful Interested Party, instructed by Richard Jobes of Gordons LLP.