The recent case involving a challenge by McCarthy and Stone to the Mayor of London’s Supplementary Planning Guidance (SPG) on Housing (1) reopened a planning policy (approach?) that has been regularly debated but that shows no sign of resolution.
The grounds of the challenge included the assertion that the SPG (2) contained policies that should only be in the London Plan and Mr Justice Ouseley was asked to consider whether the SPG was ‘policy in disguise’. Although he concluded that, because of identical provisions in the emerging London Plan, the SPG provisions “are now policies, at least for the time being”, he also noted that “the line between guidance and policy is not a bright line”. More significantly, he also concluded that two different planning authorities could legitimately call the same text either a development plan policy, or guidance, depending on the context.
This is only the latest example in a long line of decisions struggling to find legal clarity on the legitimate scope and reach of development plan policies.
The human factor
The significance of wider social issues and planning policy is a recurring theme in planning case law and policies.
In the 1985 ’Great Portland’ case (3), Lord Scarman considered the relevance of the ‘human factor’ when considering the legitimacy of policies seeking to retain certain uses on land. He noted that “it would be inhuman pedantry to exclude from the control of our environment the human factor” but that they should be seen as the exception rather than the rule, so that a specific case would need to be made in order to include personal circumstances in the motivation for creating a planning policy.
Promoting social objectives may also be a material consideration in the decision-making context, with the 2010 ‘Copeland’ case establishing that a Supplementary Planning Document restricting fast food outlets too close to schools was legitimate given the local health concerns. In this case Mr Justice Cranston noted that “planning controls in order to promote social objectives are considerations which can relate to physical land use… as long as the promotion of the social goal is lawfully within the planning sphere it matters not that it falls elsewhere as well.” Even more recently, the Court of Appeal held that the local authority must, when assessing an application for onshore wind turbines, take into account whether the proposal was approved by the local community as ‘acceptable and worthy of their backing’ (4).
Social issues are also evident in emerging local and national policies. The Greater London Authority draft Transport Strategy introduces a new Healthy Streets Approach which includes in one of its policies an aim that “by 2041, all Londoners do at least the 20 minutes of active travel they need to stay healthy each day”, while the new draft NPPF recommends that in locations where crowds are likely, planning authorities should anticipate and address “all plausible malicious threats and natural hazards” – perhaps the first example of the planning system addressing the ‘inhuman’ aspects of society.
The political factor
The introduction to the SPG that was the subject of the McCarthy and Stone case made it clear that it was produced to support a wider political objective – maintaining the economic status and success of London. Planning policy functions as a way of delivering wider policy objectives, and the legitimacy of this aim has also come before the courts.
The 'Alconbury' case in 2001 (5) acknowledged the political role of the planning system and asked whether this invalidated the planning appeal in terms of consistency with the right to a fair trial established in the Human Rights Act. The House of Lords concluded that the existence of a judicial review process ensured the fundamental fairness of the system, but also acknowledged that: “It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance.”
Although controversial at the time, the issues considered in the Alconbury case were not substantially reconsidered until 2016 when West Berkshire challenged the adoption by the government of a Written Ministerial Statement on Affordable Housing. The Court of Appeal did acknowledge that there were some constraints on the Secretary of State’s policy-making function saying: “The basic tests of reason and good faith apply” and that it was clear that the policy maker could not promote anything which would frustrate basic planning functions such as decision making powers. However they also reinforced the position previously established by the House of Lords: “The planning legislation establishes a framework for the making of planning decisions; it does not lay down merits criteria for planning policy, or establish what the policy-maker should or should not regard as relevant to the exercise of policy-making.”
The recent case brought by McCarthy and Stone is not the first time that the courts have been asked to rule on what is or is not a legitimate plan policy. It is almost certainly notgoing to be the last either: perhaps the most insightful aspect of the judgment is Mr Justice Ouseley’s observation that “the distinction between policy and guidance… is not readily caught by a judicially determined hard and fast line”.