Factual and Procedural Background
The appellant, Company A, appealed against the dismissal of its claim for statutory review under section 288 of the Town and Country Planning Act 1990. The claim challenged the decision of an inspector appointed by the Secretary of State for Housing, Communities and Local Government, who had dismissed Company A's appeal against the refusal by the local planning authority, Company B, to grant planning permission for a housing development of up to 75 dwellings at a site located in a flood risk area classified as "High Probability (3a)". The application was initially made in June 2020 and refused in July 2022 for reasons including non-compliance with the "sequential test" policy under national planning policy and the development plan. The inspector held an inquiry in May 2023 and issued a decision in June 2023. The claim was filed in July 2023, permission granted in September 2023, and the matter was heard alongside a similar claim by another party in January 2024. The court below dismissed the claim, and Company A appealed to the current court.
Legal Issues Presented
- Whether the judge erred in law by holding that the Planning Practice Guidance (PPG) can amend the National Planning Policy Framework (NPPF).
- Whether the judge erred in law by holding that the inspector properly treated the PPG as elucidating the NPPF.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that the PPG could only amplify or elucidate the NPPF policies but could not rewrite or impose additional mandatory requirements beyond those in the NPPF.
- The PPG was argued to be "subservient" to the NPPF and could not create binding or restrictive obligations that would alter the broad policy in the NPPF.
- Reliance was placed on several High Court judgments to support the view that PPG guidance does not have binding effect and cannot override or amend NPPF policy.
- The appellant argued that the updated PPG guidance on the sequential test could not redefine or constrain the concept of "reasonably available sites" established in the NPPF.
- Concern was expressed that allowing guidance in the PPG to change policy would undermine the stability and predictability of national planning policy.
- The appellant submitted that the inspector misapplied the PPG by treating it as a binding code rather than as guidance elucidating the NPPF.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Menston Action Group v City of Bradford [2016] EWHC 127 (Admin) |
PPG guidance is subservient to NPPF policy and cannot override primary policy documents. |
The court acknowledged the subservient role of PPG but found no tension between the PPG and NPPF in the present case, distinguishing it from Menston. |
| Solo Retail Ltd. v Torridge District Council [2019] EWHC 489 (Admin) |
PPG guidance is not mandatory or binding and should not be applied in an overly legalistic way. |
The court agreed that PPG is guidance, not policy, and does not impose compulsory tests; the present case did not conflict with this principle. |
| R. (on the application of White Waltham Airfield Ltd.) v Royal Borough of Windsor and Maidenhead [2021] EWHC 3408 (Admin) |
PPG is practice guidance intended to support NPPF policies and is not a binding code prescribing exact steps. |
The court upheld this principle and found no error in the inspector’s use of PPG guidance in the current case. |
| Bramley Solar Farm Residents Group v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 2842 (Admin) |
PPG does not impose binding duties beyond NPPF policy; guidance is supportive, not prescriptive. |
The court found no conflict with this approach and preferred the reasoning of the judge below over any contrary interpretation. |
| Tesco Stores Ltd. v Dundee City Council [2012] P.T.S.R. 938 |
Interpretation of planning policy is a matter for the court, but not with the same linguistic precision as contracts or statutes. |
The court applied this principle in interpreting the NPPF and PPG harmoniously. |
| Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] 1 WLR 1865 |
Distinction between interpretation of planning policy and application of that policy by decision-makers. |
The court recognized the role of planning judgment in applying policy and guidance. |
| Braintree District Council v Secretary of State for Communities and Local Government [2018] EWCA Civ 610 |
PPG can be used as an aid to interpretation of NPPF policy. |
The court endorsed the use of PPG guidance to elucidate related NPPF policies when appropriate. |
| R. (on the application of West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] 1 WLR 3923 |
Secretary of State may introduce new or amended national policy through written ministerial statements and PPG, even if inconsistent with pre-existing NPPF policy. |
The court accepted that national policy can be altered by ministerial statements and PPG without legal invalidity. |
| Tesco Stores Ltd. v Secretary of State for the Environment [1995] 2 All ER 636 |
Weight to be given to policy and guidance in planning decisions is a matter for the decision-maker, subject to public law grounds. |
The court reiterated this principle in assessing the weight of NPPF and PPG in decision-making. |
| R. (on the application of Alconbury Developments Ltd.) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 |
Formulation of policies is a proper course for providing guidance in exercising administrative discretion. |
The court accepted that NPPF and PPG are legitimate forms of national planning policy guidance. |
| Bent v Cambridgeshire County Council [2017] EWHC (Admin) |
PPG is a mixture of policy and guidance, produced less formally than NPPF and subject to frequent online revision. |
The court acknowledged the complementary and supportive role of the PPG to the NPPF. |
Court's Reasoning and Analysis
The court began by affirming the judge below’s conclusion that the PPG and NPPF have essentially the same legal status as national planning policy issued by the Secretary of State. Both are statements of policy rather than legislation, and neither has special legal status over the other. The NPPF sets broad, high-level policies, while the PPG provides detailed guidance to support and elucidate these policies.
The court rejected the appellant’s argument that the PPG could not amend or impose additional requirements beyond the NPPF policy. The court held that paragraph 7-028 of the PPG did not amend or contradict the sequential test policy in paragraph 162 of the NPPF, but rather clarified and explained it in a manner consistent with its broad and open-textured language. The guidance was not prescriptive or binding but invited evaluative judgment by decision-makers.
The inspector’s approach was found lawful and reasonable. The inspector correctly treated the PPG as elucidating the NPPF policy, applying it to determine whether alternative sites were "reasonably available" within the meaning of the policy. The inspector’s conclusion that the proposed development failed the sequential test was properly reasoned and reflected sound planning judgment.
The court also addressed the relationship between the development plan policy (policy CS3) and national policy. It accepted that the second part of policy CS3 was out of date and inconsistent with the NPPF as clarified by the PPG, justifying the inspector’s lesser weight given to that part of the policy. The conflict with the first part of policy CS3, which incorporated the sequential test, was lawful and justified refusal of planning permission.
The court emphasized that the nature and timing of the publication of PPG guidance, even if after the NPPF policy, did not preclude its use in decision-making. It also highlighted that the interpretation of planning policy is a matter for the court but with recognition of the flexible and evaluative nature of such interpretation and the need to respect planning judgment exercised by decision-makers.
Ultimately, the court found no public law error in the inspector’s or judge’s reasoning or conclusions, and no legal obstacle to the PPG clarifying or even amending national planning policy.
Holding and Implications
The appeal is dismissed.
The court upheld the decision dismissing the statutory review claim, confirming that the inspector lawfully applied the sequential test policy as clarified by the PPG and that the proposed development failed to comply with national and local planning policies. The decision reinforces the principle that PPG guidance can legitimately elucidate and clarify policies in the NPPF, and that such guidance can be given weight in planning decisions. No new precedent was set beyond affirming existing principles regarding the status and interplay of national planning policy and guidance.