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Is the NPPF illegal?

Binyamin Ali

Those pesky environmentalists are at it again.

Not content with endlessly quipping ‘I told you so’ during the recent heatwave, they’ve now thrown a spanner in the works of Theresa May’s housing masterplan: the National Planning Policy Framework.

The NPPF reforms were introduced in July this year and are intended to simplify and speed up the planning applications process, while also giving more powers to local authorities.

Friends of the Earth has filed a legal action against the government at the High Court, claiming that the reforms were illegally developed because the new framework’s environmental impact was not assessed.

Under EU law, planning programmes that impact the use of land and the wider environment must go through a strategic environmental assessment (SEA) before they can be adopted.

Friends of the Earth “wants to force the government to undertake a SEA, consult the public and modify the framework based on those findings”.

Before going any further, it’s worth noting that, if true, it would be a spectacular oversight from the Ministry of Housing, Communities and Local Government.

In response to a request for comment from Construction News, a department spokesperson said: “Environmental protection is at the heart of our new planning rulebook, setting clear expectations for future development.

“While this legal case is ongoing, it would be inappropriate to comment further.”

Not exactly the same take-no-prisoners reply No 10 issued in response to Boris Johnson’s latest attack on the Brexit Chequers deal.

So did the department simply forget about the SEA?

It seems unlikely, given it’s a common threshold that frameworks with less scope than the NPPF must satisfy.

Or is it the case that the NPPF is not a ‘plan’ or ‘programme’ in the sense required by European Directive 2001/42/EC?

Winkworth Sherwood head of planning Karen Cooksley suggests the case could hinge on this point, as “much will depend on whether the court can be persuaded that the NPPF is a ‘plan or a programme’, rather than guiding principles”.

The legal challenge could end up failing, in which case, it’s as you were.

But what if it succeeds?

What happens to all the planning applications that are now being filed, informed by the reformed NPPF, some of which could be approved before the court case reaches its conclusion – will these applications have to be done again?

If so, the reforms will have fallen some way short of streamlining the planning process.

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