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Section 8 – Promoting healthy communities

NPPF 69-78

 

Turner [2015] EWHC 375 (Admin), Collins J

Dan Kolinsky appeared for the Secretary of State

Tim Corner QC and Paul Brown QC appeared for the Third Defendant

“The claimant submits that the natural and so correct meaning of paragraph 74 requires any development to provide open space which is at least equivalent to that lost both in quantity and quality. It is not a correct interpretation to allow a smaller quantity because of enhanced quality. The claimant has referred to observations of a MP who was making particular reference to allotments saying that it meant that open spaces were not to be lost. However, I think that that is an over mechanistic approach. No doubt when spaces are fully used such as allotments or playing fields or entirely accessible recreation areas it will be difficult if not impossible to justify a loss of quantity. But it is in my view appropriate in a case such as this to consider the reality which is that the existing spaces were largely unused by the general public. The requirement in such circumstances for equivalent quantity is too restrictive and would, if applied to the letter, prevent sensible development when in reality there has been no overall loss. Accordingly, I do not think the inspector erred in dealing with open space.” [37]

 

NPPF 73-74

 

R (Loader) v Rother DC [2016] EWCA Civ 795, Laws, King, Lindblom LJJ

Neil Cameron QC appeared for the Second Respondent

“Both [local policy CF2 and NPPF 74] refer to an “assessment”. But neither prescribes what form that “assessment” must take. This will depend on the circumstances of the case in hand. Both policies hold the concept of a facility being “surplus to requirements”. Whether this is so will call for the exercise of planning judgment, with which the court will interfere only on public law grounds… The crucial question for the decision-maker, under both policies, is not how the “assessment” has been undertaken or in what form it has been presented, but whether it has clearly been shown that the facility is “surplus to the requirements of the community which is serves” (under Policy CF2), and thus “surplus to requirements” (under paragraph 74 of the NPPF).” [20]

“The three tests in paragraph 74 of the NPPF are disjunctive. The policy can be complied with if only one of them is satisfied.” [22]

 

NPPF 77

 

R (Legard) v Royal Borough of Kensington and Chelsea [2018] EWHC 32 (Admin), Dove J

“The defendant's response to [the Claimant’s submission regarding the interpretation of NPPF 77] is that there is no separate and distinct test proposed by the use of the word "serves" in the first bullet point of paragraph 77. The bullet points are intended to be read and applied together and there will necessarily be an element of overlap between each of the bullet points. What the word "serves" is cross-referring to is how the green space serves the community by being "demonstrably special" in one of the ways illustrated in the non-exhaustive list of the second bullet point. Thus, the focus of the first bullet point is "close proximity", and the use of the word "serves" introduces the requirement that the green space is "demonstrably special" by reference to examples of qualities and characteristics which it may enjoy and which are of benefit to the community. The defendant submits that once paragraph 77 is understood in that way, the reasons provided by the Examiner are perfectly adequate. 

Having considered these submissions, in my view the interpretation of paragraph 77 of the Framework suggested by the defendant's submissions and which was plainly deployed by the Examiner is the interpretation which is to be preferred. I can see no justification for having, in effect, a separate and free standing requirement that the land "serves" the local community, other than by being "demonstrably special" and holding "a particular significance" for the local community in the manner required by the second bullet point. In my view, read in the context of the policy as a whole, the word "serves" operates in this way, and I see no justification for reading it more widely to create a requirement that the open space "serves" the local community in a free standing manner beyond the question of being "demonstrably special" and holding "a particular local significance". This interpretation is in my view, clearly more consistent with the purpose of the policy than the claimant's construction. Furthermore, as Mr Phillpot on behalf of the defendant pointed out, it also reflects the approach of the guidance which reflects the interrelationship and overlap of the bullet points of paragraph 77 when addressing the question of proximity and observing:

"the proximity of the Local Green Space to the community it serves will depend on local circumstances, including why the Green Area is seen as special, but it must be reasonably close".

I am unable therefore to accept the submission that the Examiner misinterpreted paragraph 77.” [186]-[187]