Wednesday, 8 May 2019

When positive policies are not silent

A judgement handed out last month in the Appeal Court reinforced an earlier decision on how to interpret 'positively worded' policies.  Basically the question posed in the appeal was whether a policy that says 'housing should go here, here or here' means that houses shouldn't be allowed elsewhere, or whether the "silence" on other locations means that anywhere else is fair game.  

The judge (Lord Justice Lindblom) makes clear that, where there is an obvious intention behind the policy (such as the hierarchy of locations for new housing), it would make a nonsense for a liberal approach to be applied to other locations for development that are clearly not part of the plan's strategy.
Having been involved in policy writing for more years than I care to remember, I have seen the writing styles swing from negatively worded policies to increasingly positively worded phrases in a vain attempt to shrug off the NIMBY and controlling image of planning.  But although on the one hand there is the presumption in favour of sustainable development, on the other, the reason you need planning permission is because without it, development is unlawful - or to put it simply, the answer is "no".  So a positively worded policy makes more sense when it implies that 'other' options should be treated negatively, and it is good to see that this judgement helps.  However it still reinforces the need for policy writers to consider all the angles when they draft their development plans.

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