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Ensuring the vitality of town centres



R (Asda Stores Ltd) v Leeds CC [2019] EWHC 3578 (Admin), Lieven J
Rupert Warren QC appeared for the Interested Party

“34.  Ms Hall, on behalf of the Council and Mr Warren for the Interested Party, both argue that NPPF 90 does not create a presumption, and does not legally change the normal approach to weight in decision making being a matter for the decision maker, as set out by Lord Hoffman in Tesco Stores. Ms Hall took me through the NPPF to show me that in paras 11-14 the NPPF uses the word “presumption” and in that context the Government plainly intended there to be a true presumption and a tilted balance. In other places, such as paragraph 80 the NPPF says “significant weight should be placed….” and para 130 “permission should be refused”, but these do not require the decision maker to apply a presumption or a tilted balance, and they are merely an indicator of the importance that the Government places on those particular policies. She says that if the Government intended a presumption, or equivalent effect, then that would have been made clear.

  1. Mr Warren supported Ms Hall’s submissions. He made the following points. Firstly, NPPF90 and the NPPF generally were not to be read as a statute. Secondly, the policy in that paragraph is not of a different order to the rest of the document and does not create a presumption. Thirdly, the words “should be refused” do not say “in all circumstances”. It is a negative marker, or directory policy and cannot be anything else as a matter of law. Fourthly, the Secretary of State’s submissions should be read as a whole and although the wording is not wholly satisfactory, it is quite clear that the NPPF does not intend to place adverse retail impact in the same category as the items covered by footnote 6 of the NPPF. Fifthly, members had been properly advised as to what para 90 said and it is clear from the minutes and the OR what the members meant and why they departed from the officer’s recommendation. Finally, he said there was nothing irrational about the conclusion because members had plainly accepted the significant impact but thought there was scope for mitigation.

  1. In my view Ms Hall and Mr Warren QC are correct in their analysis of NPPF[90], albeit the terminology used is confusing, and seems to set a trap for decision makers. The NPPF has to be read as a whole, and in a way that makes sense of the document as a whole. In para 11-14 of the NPPF the Secretary of State has used the specific term “presumption” in relation to sustainable development, and has set out a structure by which that presumption is to be applied, and in particular circumstances outweighed. This includes footnote 6 which explains how the presumption works in particular types of case (not including those that fall within para 90). As all those engaged in planning law now know, para 11-14 creates a “tilted balance” which gives effect to the presumption, Hopkins Homes [2017] UKSC 37.
  2. By contrast in NPPF90 the word “presumption” is not used, nor is there any suggestion of a tilted balance; or any attempt to tell decision makers that they should put more weight on one factor rather than another. It is not entirely clear whether the Secretary of state could lawfully mandate a decision maker to accord a particular factor particular weight, given the words of s.38(6) and the judgement of Lord Hoffman in Tesco Stores, that weight is always a matter for the decision maker. However, the breadth of that issue is not before me in this case. What is clear is that the Secretary of State has not tried to do so in NPPF90. It is again notable that there are paragraphs in the NPPF where the Secretary of State does say, as a matter of policy, that particular weight should be given to particular matters, e.g. para 80 where significant weight is to be accorded to economic growth. I therefore do not think that Mr Tucker’s argument is correct on a textual analysis of the NPPF as a whole.
  3. Further, Mr Tucker’s approach would create a legal minefield for decision makers with potentially different presumptions pulling in different directions. This is precisely the type of excessive legalism which Lindblom LJ warned against in [41] of Mansell. In para 130 the NPPF says that “permission should be refused for development of poor design…”. If Mr Tucker is right and NPPF 90 creates a presumption, or places a legal requirement for particular weight to be attached, then it must follow that para 130 does so as well. So there would then be at least three presumptions, para 11, para 90 and para 130 which could well lead to different outcomes. It would be very unclear how the express presumption in favour of sustainable development at paras 11-14, would play against the implicit presumption in paras 90 and 130.”
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