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Ensuring the vitality of town centres

NPPF 90

 

R (Asda Stores Ltd) v Leeds CC [2021] EWCA Civ 32, Sir Keith Lindblom SPT, Coulson and Males LJJ
Rupert Warren QC appeared for the Second Respondent

“35.  National planning policy is not the work of those who draft statutes or contracts, and does not always attain perfection. The language of policy is usually less precise, and interpretation relies less on linguistic rigour. When called upon – as often it is nowadays – to interpret a policy of the NPPF, the court should not have to engage in a painstaking construction of the relevant text. It will seek to draw from the words used the true, practical meaning and effect of the policy in its context. Bearing in mind that the purpose of planning policy is to achieve “reasonably predictable decision-making, consistent with the aims of the policy-maker”, it will look for an interpretation that is “straightforward, without undue or elaborate exposition” (see Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, at paragraph 41). Often it will be entitled to say that the policy simply means what it says, and that it is the job of the decision-maker to apply it with realism and good sense in the circumstances as they arise – which is what local planning authorities are well used to doing when making the decisions entrusted to them (see R. (on the application of Corbett) v The Cornwall Council [2020] EWCA Civ 508, at paragraphs 65 and 66).

  1. The policy we are considering in this case is a good example. Its language is simple. What it says is that planning permission “should be refused” in the circumstances it contemplates – including where the development proposed will have a “significant adverse impact” on a town centre. The words “should be refused” have a clear meaning, which requires no elaboration by the court. They do not mean “must be refused”. The policy is not imperative. It does not dictate a refusal of planning permission whenever the development proposed is likely to have a “significant adverse impact” on the “vitality or viability” of a town centre.
  1. Unlike others in the NPPF, the policy in paragraph 90 does not identify factors that may tell against the proposition that the application “should be refused”. It is not qualified by a clause beginning with a word such as “if” or “unless” or “provided”. But implicit in a policy of this kind, as in many that bear on decision-making, is the need for planning judgment to be exercised in its application. As a material consideration under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, it must be given such weight as the decision-maker judges to be right when resolving whether the application is to be determined “in accordance with the development plan”, as section 38(6) requires “unless material considerations indicate otherwise”.
  1. Plainly, if the decision-maker ignores the Government’s policy in paragraph 90 of the NPPF, it will fail to have regard to a material consideration. The decision-maker must be aware of the policy, and, if approving a development likely to have a “significant adverse impact” on the “vitality and viability” of a town centre, it must be conscious of the fact that it is making a decision contrary to the proposition, in government policy, that permission for such development “should be refused”.
  2. It is not necessary, in my view, to apply to the policy in paragraph 90 the label of “presumption”. The meaning and effect of the policy are entirely clear without it. What paragraph 90 does is to establish, in national planning policy, a proposition that will indicate a refusal of planning permission if it is not overbalanced by other considerations. It does not matter, I think, whether one calls this a “presumption” or an “effective presumption” or an “expectation”, or something else of that kind. The effect of the policy is the same. Whenever a decision-maker finds there is likely to be a “significant adverse impact” on the “vitality and viability” of the town centre, this will count as a negative factor with the force of government policy behind it. It will go against the proposal as a material consideration. Other policies in the NPPF may support the proposal. These too will be “material considerations” to which appropriate weight must be given. As Mr Warren submitted, the policy in paragraph 90 does not have some special status, enabling it to prevail over any other policy in the NPPF. Nor does it automatically trump any other material consideration or combination of material considerations bearing on the decision.
  3. The crucial point, therefore, is this. Even if the policy in paragraph 90 is rightly regarded as containing a “presumption”, the “presumption” is one that can be overcome by countervailing factors, which are not specified or limited by the policy itself – but might include, for example, planning benefits such as the creation of jobs in an area where unemployment is high and an uplift to the local economy by the development proposed. Inevitably, this will be more difficult or less according to the nature and degree of the “significant adverse impact” the development is likely to have. The potential harm will vary from one proposal to another. Giving appropriate weight to it is a matter of planning judgment for the decision-maker. In some cases, the development may be judged likely to cause numerous shop closures and vacancies in the town centre, serious and lasting effects on trade to the detriment of the centre as a whole, and a long-term lack of investment. In others, the effects may still be “significant” but much less damaging, and the town centre may be expected to recover in a relatively short time. A “significant adverse impact” is not a uniform concept.
  4. It follows that the strength of countervailing factors sufficient to overcome the proposition, or “presumption”, in the policy will also vary. The policy “presumption” – if one calls it that – will be overcome only if the likely “significant adverse impact” on the “vitality and viability” of the town centre is judged acceptable when all material considerations are weighed by the decision-maker in performing the statutory obligation in section 38(6) of the 2004 Act. This, of course, must be lawfully done in every case (see Secretary of State for Communities and Local Government v BDW Trading Ltd. [2016] EWCA Civ 493, at paragraph 21). Within the overall process of determination under the statutory scheme, the considerations favouring the proposal will have to be powerful enough to outbalance those weighing against, including the harm to the town centre and the proposal’s conflict with government policy in paragraph 90 arising from that harm. Otherwise, the proposition or “presumption”, and therefore the policy too, will prevail. However, the weight to be given to these considerations is for the decision-maker, subject only to the court’s supervision on public law grounds (see the speech of Lord Hoffmann in Tesco Stores Ltd. v Secretary of State for the Environment, at p.780).”
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