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Work in progress

We look at the current status of neighbourhood planning. The government has demonstrated its continuing commitment to neighbourhood planning by naming a Bill after it, including it in a written ministerial  statement and in the housing white paper, and continuing to emphasise its importance in recent appeal decisions. This article considers recent developments and the direction of travel.

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This article was first published in Property Law Journal (May 2017) and is also available at http://www.lawjournals.co.uk/.

More planning protection for pubs

In 2015, the Government removed permitted development rights from pubs listed as Assets of Community Value (ACVs).  As previously reported, pubs which are listed as ACVs, or have been nominated to become ACVs, require planning permission for changes of use or demolition, which otherwise could be carried out under permitted development rights.

Noting the importance of pubs to local communities, some local authorities have made Article 4 Directions to remove permitted development rights from pubs. The London Borough of Wandsworth made an Article 4 Direction in August 2016 removing specified permitted development rights for changes of use, demolition and alteration for 120 identified pubs and bars.

Following Wandsworth’s lead, the London Borough of Southwark introduced an Article 4 Direction removing permitted development rights from all 188 pubs in Southwark in March 2017.  The Article 4 Direction means that planning permission will need to be obtained for specified changes of use, demolition, demolition or construction of gates, fences and walls, and exterior painting.

After discussions in Parliament in connection with the then Neighbourhood Planning Bill, the protection afforded has been further extended by the Government to cover all pubs rather than just those listed as ACVs. Section 15 of the Neighbourhood Planning Act obliges the Secretary of State to as soon as reasonably practicable make an order to remove permitted development rights for changes of use and demolition of pubs, and to grant permission for pubs to change to pub and café/restaurant use.  This requirement has been met by the making of the Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017, which comes into force on 23 May 2017.

The order removes permitted development rights so in most cases pubs will instead have to apply for planning permission to:

  • change to a shop;
  • change to a restaurant or café;
  • change to a state funded school;
  • change to a temporary flexible use; or
  • to be demolished.

The order includes a new permitted development right, to allow pubs to change use to “drinking establishments with expanded food provision” and vice versa without planning permission.

The order demonstrates the importance of pubs to the Government, by requiring a planning application for a change of use other than to a pub restaurant.  While this change negates the need for communities to list their local as an ACV to prevent changes of use without planning permission, listing could still be pursued.  A local planning authority can consider ACV status as a material consideration on a planning application, and so ACV listing could be an extra factor the local planning authority has to take into account when considering an application to change the use of a pub.  This then offers an extra layer of protection for communities wanting to keep venues operating as pubs.

Neighbourhood Plans First But How Long Will They Last?

Judgment has been handed down in the first Neighbourhood Plan (NP) case to reach the Court of Appeal, reinforcing the position that NPs can come forward in the absence of up to date Local Plans.

As discussed previously, developer DLA Delivery Limited judicially reviewed the decision to hold a referendum on the draft NP as, in addition to environmental concerns, DLA claimed that the plan was not in accordance with the appropriate strategic policies.  The NP had been prepared in accordance with the policies of the unadopted, emerging Local Plan, rather than the expired strategic plan.

In the High Court, Foskett J dismissed the claim, allowing permission to appeal on the ground of conformity with strategic policies.  Permission was subsequently given to appeal on additional grounds.

Conformity with what?

On the first ground, whether the district council misunderstood and misapplied the requirement that the NP be in general conformity with the strategic local policies, Lord Justice Lindblom agreed with Foskett J that a NP could proceed in the absence of a strategic development plan document. Lindblom LJ added that where the local plan is historic, a NP cannot logically lack general conformity, as the plans are made for wholly different periods.  The judgment makes clear that a NP can come forward in the absence of an up to date local plan.  Both the National Planning Policy Framework (NPPF) and Planning Policy Guidance (PPG) references to a NP being in general conformity are intended to prevent the “mischief” of a NP frustrating an up to date local plan, rather than requiring a local plan to be in place first.

Properly assessed, but not explained

On the second ground, whether the NP failed to meet Habitats Directive requirements due to the lack of evidence that the Suitable Alternative Natural Greenspace (SANG) required to mitigate the proposed development would be provided.  Lindblom LJ found that the examiner was not irrational to have considered that SANG would have to be provided, despite the timing and location being uncertain (unlike the level of certainty needed when dealing with a planning application).  The examiner failed to address the lack of evidence for SANGs, and should have done, but Lindblom LJ did not consider this to be fatal, finding that addressing the lack of evidence would not have changed the conclusion.

Early Warning

This judgment clearly demonstrates that NPs can come forward in the absence of an up to date local plan. However, the groups preparing NPs in such areas should be aware of the risk that their NPs may become “out of date” when a local plan with a higher objectively assessed housing need is adopted.  The Written Ministerial Statement, as clarified by the Housing White Paper, provides protection for NPs unless there is a significant lack of delivery in the local planning authority area – but this will be outside the control of the NP group.  Many NP groups and local authorities will also be reassured by Lindblom LJ’s robust defence of the current way of appointing examiners.

The judgment also flagged other areas of caution for NP bodies. Lord Justice Lindblom found the consideration of the environmental mitigation by the examiner was not wholly correct, whilst concluding that it was not fatal to the plan.  The conclusion that the screening opinion was actually in breach of some habitats legislation will be a particular red flag.  Screening opinions and SEA considerations raise particular risks for NPs.  NP forums need to give careful attention to their proper preparation, which can be tricky where groups may have limited experience of such documents.

Assets of Community Value: chickens and eggs

Some recent cases have considered Assets of Community Value (ACVs) where the owner is both appealing a refusal of planning permission, and is also appealing the decision to list the property as an asset of community value.  These cases helpfully demonstrate how the interrelated appeals are considered from both a planning application and listing challenge perspective.

The Alexandra Public House in Haringey closed in 2012, and was listed as an ACV in 2015. The owner bought the pub in a semi-derelict state, and made a planning application to change the building into two dwellings, as well as appealing the listing of the pub as an ACV.

The local authority refused planning permission, but the Secretary of State granted permission on appeal.  The Inspector noted “the primary purpose of ACV listing is to afford the community an opportunity to purchase the property, not to prevent otherwise acceptable development“, and while some weight was afforded to ACV listing, the Inspector found it not to be determinative.  Weight was given to the additional dwelling which would be provided, the improvement in the quality of the existing flat above the pub, the reduction in noise and anti-social behaviour for the neighbours due to the change of use, and the provision of a viable use for a run down the building.

In considering the listing appeal after planning permission had been granted, the Judge referred to the decision in the Tumbledown Dick appeal, which stated that the grant of planning permission for an alternative use should not be ignored in the context of a listing appeal.

The Tumbledown Dick case considered a historic pub, which McDonald’s agreed to purchase before the Localism Act came into force.  Shortly before the First Tier Tribunal considered the listing appeal, McDonald’s obtained planning permission for a change of use to restaurant/takeaway.  The Judge considered that the grant of planning permission, along with the sale of the freehold, substantial expenditure being required to bring the building back into use and that it had been vacant for five years made a future community use unrealistic.

The Judge noted that where permission is refused, it might make it more likely that the building would be sold at a price which could support a community use, or allow the continuation of the current community use. In this case, as planning permission for residential use had been obtained, it was much less likely that the Alexandra would be sold at a price low enough to allow a pub use.  On this basis, the Judge allowed the appeal to remove the property from the list of ACVs.

The Ship in South Norwood closed as a pub in 2014, and was listed as an ACV in 2016. The Ship was converted to residential.  The Local Authority issued an enforcement notice for the conversion of the public house into seven flats and office space, along with physical works, which the owner appealed.

In considering the enforcement appeal, the Inspector noted that the ACV listing was being challenged on the basis the decision was made outside the specified time limit, and that if the ACV status was not confirmed, the building could be used as shops, financial and professional services or restaurants or cafes under permitted development rights. While a material consideration, ACV listing did not outweigh the benefits of providing additional housing and a viable use for the building, and the appeal was allowed and permission granted for the change of use.  The Ship remains on Croydon’s list of ACVs.

These cases are helpful in showing the Secretary of State’s approach to ACV status. While it is a material consideration, in neither case did it result in planning permission being refused for a change of use which will effectively end the community use.  This is a clear departure from the view expressed by the Upper Tribunal in Banner Homes, that any permission for a change of use was likely to be refused while the asset was ACV listed, as we discussed in a previous blog.  While owners of ACVs may be reassured that planning permission has been granted as part of an assessment of fairly ordinary planning considerations, nominating groups may be dismayed that ACV status did not afford these community assets greater protection against a change of use.

A layer of complexity, a review of the ramifications of the Localism Act five years on

The Localism Act 2011 obtained royal assent in November 2011, gradually bringing into effect a raft of legislation supporting the government’s communities-based agenda. Following the Conservative Party’s 2010 manifesto, subtitled ‘Invitation to join the government of Britain’, localism remained a focus of the coalition government, and remains a focus of the current government.

Read the full article

This article was first published in Property Law Journal (October 2016) and is also available at www.lawjournals.co.uk

 

Neighbourhood Planning Unchained? The Neighbourhood Planning Bill 2016

Having lost its infrastructure component between the Queen’s Speech and publication, the slimline Neighbourhood Planning Bill had its first reading in the House of Commons earlier in September, and its technical consultation is open for responses until 19 October 2016.

The most interesting element of the Bill from a neighbourhood plan perspective is the process for modifying a neighbourhood plan – although the requirement for subsequent regulations means the precise effect is not yet known.

nhdChanges to bear in mind

This provision is helpful following the changes to the Planning Practice Guidance made earlier in the summer, which suggested that a fresh neighbourhood plan process would be needed (including a referendum) to update a plan where its policies become out of date.

The Bill provides a three tier process:

  • The local planning authority may make minor modifications with the consent of the neighbourhood planning body, without further consultation, examination or a referendum.
  • Where more substantial changes are proposed, a streamlined process is available (as long as the changes do not change the nature of the plan).  An examiner will then consider the amended plan (normally via written representations, and a further referendum is not required).
  • If the modifications would change the nature of the plan, a fresh neighbourhood plan process would be required. 

While it is questionable how streamlined this written representation process will be, and whether it would apply in circumstances where neighbourhood plans must be updated to be in general conformity with new local plans, the prospect of a quicker and simpler way of modifying a neighbourhood plan is to be welcomed.  Owners and developers will need to monitor carefully whether changes are being made that would prejudice their interests (and whether the process is being followed properly).

Weight

There are also several provisions which seek to give greater weight to neighbourhood plans, perhaps with political intentions. For example, provisions give weight to neighbourhood plans which have passed referenda but have not formally been “made” by the local authority.  It is not clear how much of an issue this has been, particularly given the current Planning Practice Guidance which states that emerging neighbourhood plans can be a material consideration, referring back to paragraph 216 of the National Planning Policy Framework weighing of emerging plans.  However, the Government is clearly keen to emphasise the importance of neighbourhood plans, and make it clear that local planning authorities cannot limit the consideration of neighbourhood plans by failing to “make” them. The Bill also requires local planning authorities’ statements of community involvement to set out their policies for giving advice and assistance with the making and modification of neighbourhood plans.

These changes demonstrate the continuing focus on and political will behind neighbourhood planning.

 

Lions and tigers and … Assets of Community Value

The first Asset of Community Value (ACV) case to reach the Upper Tribunal has upheld the listing of a field used by the local community without the permission of the landowner.  The decision will be of considerable interest to the owners of similar properties, considering the uses of land which can benefit the community for ACV purposes, and the bar to show a continuing community use.  The process for listing an ACV is explained here. The case has serious implications for owners allowing inoffensive use of land with development potential, including ‘meanwhile’ uses of buildings.

Backdoor village green?

fieldBedmond Lane field, located in the Green Belt and crossed by two footpaths, had been used informally by the local community for 40 years until 2014. A local residents’ association nominated it as an ACV in 2013, and it was listed by St Albans City and District Council without notice to the owner (Banner Homes) in March 2014.  Banner requested a review of the decision to list the field (and fenced the footpath/ erected notices stating “private land no unauthorised access”).  The Council decided to maintain the listing in September 2014.  Banner appealed to the First Tier Tribunal, which upheld the listing decision in April 2015.

Banner were then granted permission to appeal to the Upper Tribunal on two grounds:

  • whether the community use in Section 88(2)(a) of the Localism Act 2011 could include an unlawful use (Ground 1); and
  • whether there was a reasonable prospect of a community use in the next five years (Ground 2).

Unlawful community uses

Banner argued that use of land without permission could not meet the test for listing as an ACV.  Rejecting that, the Upper Tribunal pointed to:

  • the lack of specific exclusions in the ACV legislation for unlawful use (and allowance for criminal use in dealing with acquisition of rights by prescription);
  • the fact that the requirement for the use to further the social wellbeing or social interests of the local community provides some “inbuilt protection” from a public policy perspective; and
  • the fact that ACV registration does not create any private rights, unlike the Town and Village Green regime.

More than fanciful

On Ground 2, the Upper Tribunal rejected the argument that the ‘realistic reuse’ test under Section 88 of the Localism Act ACV regime requires anything more than a possibility (as opposed to a likelihood) of a main community use of the land in the future.  Noting Banner Homes’ insistence that it was not and never had been its intention to grant rights of access or use to the public, Levenson J concluded that the future use test was one for the local authority or the Tribunal, and “is not a matter for veto by the landowner”.

The First Tier Tribunal’s decision – that it was “not fanciful” that a community use could re-start if Banner had a change of heart – was upheld. Banner’s difficulties in securing planning permission to graze horses on the Green Belt land (and the limited chance of planning permission being obtained for other uses in the immediate future) was treated as relevant.

Planning prospects

Government guidance recognises that LPAs may treat ACV status as a material consideration.  The Upper Tribunal judgment suggests that “as a matter of planning policy any necessary permission is likely to be refused while land is listed”.  That is wrong but reflects the way that ACV listing is emerging as a trip hazard for developers.

The combination of a low bar to meet the future use test and the limited weight given to the representations of owners will be a matter of concern for the owners of potential ACV sites.  While it is sensible that the decision maker considers the property and its potential in the round, to avoid all owners promising they would never allow a community use and therefore defeating the listing of any asset, a sensible balance needs to be struck.

This case will be of concern to owners of similar development sites.  While the use of fences and notices may interrupt the creation of other rights, they may not prevent the prospect of ACV listing, and owners may wish to take concrete steps to show that it would be fanciful for the main use of the property to be a community use in the future – possibly by obtaining planning permission for a non-community use if possible.

Neighbourhood watch

signNeighbourhood Planning remains a political priority and is one of the areas for which Planning Policy Guidance has recently been updated.  Following the Woodcock Holdings decision, relating to the Husterpoint and Sayers Common 2031 Neighbourhood Plan, the recommended approach to Neighbourhood Plans emerging before up to date Local Plans are in place has been clarified.

Already clear?

In Sayers Common, the Secretary of State dismissed an appeal despite his Inspector’s recommendation to allow it.  He concluded that the proposal would conflict with the Neighbourhood Plan, formally made after the Inspector’s report.  Permission was refused as the proposal would conflict with a requirement to enhance the existing settlement pattern, and was considerably in excess of the 30-40 dwellings the Neighbourhood Plan considered could be accommodated during the plan period.

However, this was quashed when Woodcock Holdings Limited successfully challenged the decision, on the basis that the Secretary of State had failed to identify the nature and extent of the conflict with the Neighbourhood Plan, had not applied the presumption in favour of sustainable development, the PPG guidance (that permission would seldom be refused for a pre-examination draft plan had not been complied with), and that the NPPF policy regarding weight to be afforded to an emerging plan had not been followed. The judgment did conclude that a neighbourhood plan could come forward ahead of a Local Plan, but the legal challenge was allowed on all grounds (see our blog on the detail).

Back to the future

The planning application has been re-determined by the Secretary of State, who again refused permission on the basis that it was not in accordance with the Local Plan or the now-made Neighbourhood Plan, to which he gave “careful consideration”.  He also gave the emerging Local Plan “very limited weight”, and reached the same conclusions regarding conflict with the policies as before.

As discussed previously in relation to the DLA Delivery Limited case, which challenged a Neighbourhood Plan prepared in accordance with an emerging local plan (rather than the existing expired core strategy), there has been debate on the treatment of Neighbourhood Plans which come forward in the absence of an up to date Local Plan.  Recent updates to the Planning Policy Guidance clarifies the Government’s position where a Neighbourhood Plan comes forward in advance of a new Local Plan. The Guidance states that:

  • Neighbourhood Plan policies “may become out of date, for example if they conflict with policies in a Local Plan that is adopted after the making of the neighbourhood plan. In such cases, the more recent plan policy takes precedence“.
  • communities may decide to update all or part of their Neighbourhood Plans where they have become out of date, which will require a fresh examination and referendum, putting a considerable burden on Neighbourhood Plan steering groups.

The best way to avoid this is to ensure that Neighbourhood Plan policies either do not interfere with meeting Objectively Assessed Needs or, more difficult where there is no proper assessment of needs on the table, that any restraint policies are consistent with maintaining a 5 year housing land supply. The PPG update does not suggest that a Neighbourhood Plan that is immediately out of date at adoption – because its policies thwart a 5 year Housing Land Supply – should be given more weight than the policy imperative to maintain housing land supply and meet OAN.

In Woodcock Holdings the relevant parts of the Neighbourhood Plan were held to be inconsistent with the NPPF in this sense and so unlikely to survive either examination or allow a finding of prematurity.  The latest Sayers Common decision does not explain how an out of date set of NP settlement policies could be given overriding importance relative to national policy requirements in that sense.

Putting the Neighbourhood Plan cart before the Local Plan horse

newickThe Court of Appeal has granted permission for the first Neighbourhood Plan case to be heard by it on appeal. The appeal is brought by DLA Delivery Limited, who applied for planning permission for 63 houses on the edge of the village of Newick, East Sussex.  DLA promoted its site as part of both the Local Plan, and the Neighbourhood Plan process, which have been running concurrently.  Although DLA’s land was identified as a suitable reserve housing site in the emerging Local Plan, the Neighbourhood Plan did not allocate it.

Accordance with what?

While the Local Plan is still emerging, the Neighbourhood Plan has been progressed. DLA sought permission to judicially review the local planning authority’s decision to hold a referendum on the draft Neighbourhood Plan (which has subsequently been formally made, becoming part of the local development plan).  In addition to environmental grounds, DLA claimed that the Neighbourhood Plan was not in conformity with the appropriate strategic policies.  The Neighbourhood Plan had been prepared in accordance with the policies of the emerging Local Plan.  However, as the Local Plan had not yet been adopted,  the plan currently in force covered the period to 2011.  DLA argued that the Neighbourhood Plan could not be in accordance with the strategic policies, and therefore meet the basic conditions to be made, as the plan it related to was not yet in force.

Court of Appeal prepared to look again

The claim was dismissed in the High Court by Foskett J, but granted permission to appeal on one of eight grounds – the need for the Neighbourhood Plan to be in ‘general’ conformity with strategic policies.  Permission to appeal on the other grounds has subsequently been granted by Lord Justice Lindblom in the Court of Appeal.

The case raises interesting points at a time where neighbourhood planning is a political priority, with measures to speed the process included in the Housing and Planning Bill.  Meanwhile, Local Plans with their need for a vast evidence base, may lag behind.  It remains to be seen how the following issues, addressed in the High Court in Woodcock Holdings, will be dealt with by the Court of Appeal.

  • Where Local and Neighbourhood Plans come forward at the same time, should the Neighbourhood Plan look back to the existing plan, or forward to the emerging plan?
  • How can a Neighbourhood Plan, in general conformity with an out of date Local Plan, meet the needs of the community going forward?
  • Should a Local Plan be able to override a Neighbourhood Plan once it has measured its objectively assessed need, if more homes are needed?

Independence day?

A further point of interest raised by the appeal is the appointment of Neighbourhood Plan Examiners. While Local Plans are examined by inspectors appointed by the Planning Inspectorate, Neighbourhood Plan examiners are appointed by the relevant Neighbourhood Plan steering group.  Whilst the claimant emphasised that they made no criticism of the examiner personally, they did suggest that the appointment of the examiner by the parish council gave rise to an appearance of bias.  It will be interesting to see what the Court of Appeal make of this “apparent bias” in the appointment of examiners – should it be another job for the Planning Inspectorate?

Neighbourhood planning: full steam ahead?

The Housing and Planning Bill seeks to further the Government’s localism agenda, by speeding up the neighbourhood planning process.  The Bill includes provisions to automatically designate neighbourhood areas where Local Planning Authorities (LPAs) do not make a decision in time, and will impose a timetable on the consideration of neighbourhood plans.

The Government is now undertaking a consultation on the contents of regulations to be made under the Bill once it becomes law.  The consultations suggests a range of measures which will further increase the pressure on LPAs to progress neighbourhood plan applications.

Neighbourhood-planNoting that 90% of applications are from Parish Councils, and 90% of those applications are for the whole parish, the consultation suggests removing the ability of local planning authorities to amend the area applied for in these circumstances, unless part of the area was designated for another plan. Rather than having eight weeks to consider this type of application, the LPA would have to approve it as soon as possible.

The consultation suggests a limit of 13 weeks for LPAs to consider applications for neighbourhood forums, where applications are to a single LPA, or 20 weeks where two must be involved, and an exception where part of the area has already been designated.

The consultation also asks whether an LPA should be given five weeks from receiving an examiner’s report to decide whether to call a referendum, unless they disagree with the examiner, or agree more time is needed with the neighbourhood group. The consultation suggests a procedure to notify interested parties where they disagree with the examiner.

The consultation suggests that referenda should be held within ten weeks of the decision to call a referendum, or 14 weeks in a designated business area. It also suggests that following a referendum, the LPA should be required to bring the plan into force within eight weeks.

The process by which the Secretary of State may intervene when requested by the neighbourhood planning group is also suggested.

The consultation also proposes that designated neighbourhood forums be added to the list of bodies consulted by LPAs when they are preparing local plans. Alongside the provision in the Bill which allows neighbourhood forums to request that they be notified when planning applications are made, this increases the sway neighbourhood forums will have as part of the wider planning process.

These measures all emphasise the importance to the Government of neighbourhood plans, and increase the pressure on LPAs to progress applications. While there is clear political intent to involve people in planning decisions at a local level, this comes at a time when LPAs may be struggling with the volume of planning applications and have limited capacity available for the work associated with neighbourhood planning.

It remains to be seen whether these measures will boost the number of neighbourhood plans being made, or whether they will increase pressure on (already) stretched LPAs without significant results.