The Tyranny of Adjectives—how limited is limited harm?

Feeling despair in the middle of a planning inquiry is rare; however, that recently happened to me. A witness had said the benefits of a development would be ‘significant’; the other side said ‘substantial’. Were we about to have a barrister bun fight about the distinction between these two words? Thankfully, both sides agree that in this context the words were synonymous and hours of painful cross-examination regarding the distinction were avoided.

However, this got me thinking—are the adjectives used by planners, developmental plans and even the NPPF a help or a hindrance. Do they reflect the intricacies of planning judgement which should not be reduced to a simple ledger with benefits on one side and harms on the other or are they merely a rich source of obfuscation?

After ruminating on this for a bit too long: I identified two main problems regarding language: the premature use of ‘acceptability’ and the use of relative terms like ‘limited’ ‘significant’ and ‘reduced’. From this, I thought about what hierarchy of adjectives I would use.

It is unacceptable to use ‘acceptable’ in a policy. Let’s start with an example— ‘Development will be supported where it does not have an unacceptable impact on daylight and sunlight’. This seems straightforward, if you block out neighbour’s windows with your three storey extension, you are unlikely to get permission. However, what if I want to build a large residential tower that looms over neighbouring properties but will alleviate an acute housing shortage; is that acceptable? Obviously, the benefits will have to be weighed against the harms. Critically, however, the benefits have to weighed before a decision maker decides whether there is a breach of the policy given that the test is ‘acceptability’. If I am a developer or a local resident, I have no idea looking at this policy what the minimum baseline is for ‘acceptability’ is likely to be. The policy might as well say ‘we will weigh loss of daylight in the balance’. Thus, why the policy purports to give special protection to sunlight and daylight, it does no such thing. Moreover, let’s say that a Local Planning Authority acknowledges a breach of the policy but the benefits outweigh the breach. Is such harm really ‘unacceptable’ given that permission has been granted? That strikes me as a contradiction in terms and a further source of confusion

Relative terms like ‘limited’, ‘significant’ and ‘reduced’ are frequently used by planning witnesses and inspectors; however on closer inspection they obscure far more than they illuminate. Limited means a reduction but to what extent? If I reduce the visual impact of my concrete factory by enclosing it within pine trees, I have limited the impact but have I limited it enough?

‘Significant’ is another protean term. A slight harm can be significant—if Banksy were to adorn one small corner of the Tower of London with his artworks, that harm might be fleeting but given the sensitivity of the site, the harm would be significant. Conversely, bulldozing an unloved 1960s estate will patently have a substantial impact, but is it significant if it was completely out of character with local historical buildings. Obviously, the sensitivities of sites will vary, but if we rely upon the word ‘significant’ without further explanation regarding the sensitivity of the site, justification will remain elusive.

Even the NPPF 2021 has many relative terms: under paragraph 81, ‘significant’ weight should be given to supporting economic development. Is that the same as, less than or more than the ‘substantial’ weight given to protecting green field sites (paragraph 148) or promoting brown field sites (paragraph 120c). I am afraid I do not know and now I’m a planning barrister.

Equally, under paragraph 176, developments within designated areas should be ‘limited’ but how limited? Is that another way of saying ‘small’ or ‘no more than necessary’? I’m not sure. When justifying a decision the NPPF is inconsistent: ‘robust evidence’ is required for refusing permission on future possible transport infrastructure (paragraph 106c), ‘compelling evidence’ is required for making allowances for windfall sites (paragraph 71), altering green belts must be ‘fully evidenced’ (paragraph 140); however, if a local authority wants to ban telecommunication equipment they just need ‘evidence’ that it will not interfere with other equipment (paragraph 114),

Now compare that to the times the NPPF uses absolute terms: traffic impacts should only justify refusing a scheme if they are ‘severe’ (paragraph 111); harm to heritage assets carries ‘great weight’ (paragraph 199) as does creating new schools (paragraph 95) and conserving Areas of Outstanding Natural Beauty (paragraph 176). Thus, planners and the public at large have a clear idea of the case that needs to be made out and the weight that certain policies carry.

Why does this matter? If planning decisions are to be genuinely plan led, decision makers need a loadstar when making decisions: these things are important, these things less so; these are the priorities; these are not. Otherwise, fiendish barristers can contort and distort the meaning of words to suit their own objectives generating far more heat than light in the process.

Words mean different things to different people. Yougov once commissioned a survey on how ‘good’ was good? (https://yougov.co.uk/topics/lifestyle/articles-reports/2018/10/02/how-good-good) – Turns out the mean answer was 6.92 out of 10 – abysmal was the worst at 1.21 out of 10 and perfect was unsurprisingly top but did not get a perfect score (9.16). However, ‘good’ had a wide spread; for some people ‘good’ equates to four out of ten, but for others it was nine out of ten. Thus, a simple adjective in common use can mean many different things to different people. This is before you add in the British tendency to understatement which European negotiators need a crib sheet to comprehend (https://www.bbcamerica.com/anglophenia/2012/01/what-the-british-say-and-what-they-really-mean)

Moreover, those reluctant to grant permission for much needed development have an escape route for resisting development. They can claim that they have supported the Government’s desire to ‘significantly boost’ housing supply (paragraph 60) when only allowing a small development on a site suitable for far more homes claiming that their contribution is significant in context. Obviously, an assessment of harm will need to take account of the context, however, relying on the word ‘significant’ without more grants too much leeway to decision makers to obscure their true motives and presumptions.

Decisions, witnesses and policies should be clear in their meaning and given that the critical issues that are being discussed are questions of degree, the words employed to convey the degree of weight or harm are critical to understanding that meaning. Accordingly, given the importance of planning, we should settle on simple hierarchy of adjectives that are easily understood rather than a set of words which are easily manipulated.

Having banned ‘limited’ ‘significant’, ‘reduced’ and ‘acceptable’, what should they be replaced with? My view as a very junior planning barrister is as follows: for harm, I would advise negligible, slight, moderate, substantial, and severe. For weight and sensitivity, I would use negligible, slight, moderate, substantial, great and (very rarely) exceptional weight (i.e. the weight given for not building on the green belt according to the NPPF).

If policies were limited (I see what you did there-Ed) to those adjectives, there would be greater clarity and predictability. Moreover, by encouraging decision makers and planning witnesses to use these acceptable adjectives, we should see greater clarity in decisions, greater focus on the evidence and reduced arguments between barristers about semantics and less attempts at obfuscation. Limiting the acceptable topics for barristers to argue over can only be a good thing and would amount to an improvement which can only be described as significant.