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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/.

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.

Neighbourhood Plans Fudge

The Government’s solution to the so-far intractable problem of Neighbourhood Plans that do not meet housing needs is here in the form of a Written Ministerial Statement (WMS) calling time on the  relative certainty provided by the NPPF and firing the starting gun for changes to the NPPF due with the issue of the Housing White Paper early in 2017.  Most Neighbourhood Plans (NPs) will be going nowhere sensible, even more emphatically than ever.

Nothing comes of nothing

The Courts have confirmed that the Examination tests for a Neighbourhood Plan are a cake walk that does not require any sensible relationship with strategic goals of meeting Objectively Assessed Needs. NPs can be passed fit for service at Examination simply having “regard to” national policies where it is “in general conformity with the strategic policies” that may date back to the 1990s and have little or no relationship to the ongoing mess of housing delivery.

Equally, the ability to put NPs in place without any up to date strategic policies – and the endless snakes and ladders of the Local Plan process – creates a challenge for those promoting NPs as a positive framework for local growth.  Adopted NPs may provide a warm glow that immediately fades as an absent overarching housing land supply weighs in under paragraph 49 of the NPPF.

The Government’s response to date has been wholly political.  In some cases NPs have been effectively ignored; in others the out of date NP policies have been given determinative weight, refusing permission for 100 homes at Yapton in an area of housing need with 3 years’ HLS on the basis that out of date NP policies should be given “significant weight”.

Sticking Plaster Applied

laiThe WMS states that

relevant policies for the supply of housing in a neighbourhood plan … should not be deemed to be ‘out-of-date’ [under NPPF49] where […]”:

  • the WMS or the NP are less than 2 years old
  • the NP “allocates sites for housing”
  • the LPA “can demonstrate a three-year supply of deliverable housing sites”.

Cue some authorities currently bobbing around on the Local Plan process to ditch infrastructure planning, batten down the hatches with a 3 year supply and encourage NPs through the process.  Cue some NP that allocate a couple of single unit sites being treated as up to date even if there remains a housing shortfall in the neighbourhood.

A far better solution would simply be to require the NP examination regime to grapple with the unconstrained Objectively Assessed Needs for their area and plan to meet an equitable slice of them until the Local Plan comes along. NP authors are, after all, engaging in devolved governance.  With that great power comes great responsibility.

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.

 

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.

Inspector’s decisions and the kitchen sink

The recent decision in Villages Action Group v Secretary of State for Communities and Local Government highlights the need to handle early stage Neighbourhood Plans carefully on appeal.

The Aldingbourne and Westergate Villages Action Group challenged the Secretary of State’s grant of permission for a residential development in Aldingbourne, West Sussex on appeal, on the basis that his inspector had failed to consider the emerging Aldingbourne Neighbourhood plan (or give adequate reasons for dismissing concerns about restricting the expansion of a neighbouring school). The appeal site was earmarked for a school expansion in the emerging Neighbourhood Plan (NP). The NP was at a very early stage – having only been published in first draft after the Inquiry (and so well short of even the start of the local authority publicity period referred to in the PPG).  Reference to the NP by the local authority in its statement of case accepted that it was material but of minimal weight.

The Limit of Reason(s)

Mrs Justice Lang held that the Inspector was not obliged to refer to the draft NP in her decision letter, because it was at a very early stage and attracted little weight, the school expansion idea was hopeless, the documents were not provided to her and little reliance was placed on it at the Inquiry (or afterwards). She also refused to accept that the Inspector had overlooked the NP as a material consideration (despite making no comment on it in the decision).

NPThere are some points to bear in mind on appeal:

  • Unlike planning authorities, the Inspectorate/ Secretary of State have a statutory duty to give reasons.
  • Only ‘main issues’ must be referred to in decision letters.
  • There is no general duty of inquiry on appeal – absent a statutory duty to consider issues, parties must raise issues and evidence sufficiently clearly.
  • The challenge was dismissed, with no error by the Inspector established.

Prematurity vs Conflict of Policies

The judgment implies that prematurity (as opposed to simple conflict with emerging policies) will not be a ‘main/ principal important controversial issue’ worthy of freestanding inquiry or even a real consideration unless the plan is at an advanced stage.  The PPG arguably sets the bar in a different way – preventing prematurity refusal, not consideration per se, where the NP is still embryonic.

As in the Court of Appeal’s decision in the Shinfield Glebe challenge (1), the question could be asked and answered differently – was the early stage NP (and any prematurity effect) genuinely material in the sense that it might have led the Inspector to reach a different conclusion (or was otherwise fundamental)? If so – which is perhaps doubtful on the facts described in the judgment – could it sensibly have resulted in anything other than permission? The PPG suggests not.

(1) where the Planning for Growth ministerial statement, issued after the Inquiry, was held not to have been considered because it was not included in the decision letter.

 

Power to the people?

Localism remains a political priority.  The introduction of Neighbourhood Planning and the ability to nominate Assets of Community Value via the Localism Act 2011 has given communities powerful tools to control development locally.

The importance of Neighbourhood Plans has been emphasised by recent Secretary of State decisions on appeal, with several applications refused where they were considered to prejudice emerging plans, and permission granted for sites allocated in neighbourhood plans before the adoption of local plans. The initial protection provided by designated Assets of Community Value has also been expanded, with some permitted development rights removed from pubs which are listed.

These Localism measures are now being employed by communities to oppose large projects of importance to the Government.  Adjacent to Heathrow Airport, the villages of Sipson, Harmondsworth and Harlington have set up the Heathrow Villages Forum.  Having received a grant of £7,000 to create a neighbourhood plan, they have set the proposed boundary and are planning to submit it to the London Borough of Hillingdon for designation as a neighbourhood plan area.  One of the key issues identified is that the area is “blighted by the spectre of Heathrow airport expansion”, suggesting the likely approach of the Neighbourhood Plan towards expansion.

bridgeMeanwhile, Thames Central Open Spaces, a group opposing the Garden Bridge, have successfully nominated the area of the Queen’s Walk, proposed as the landing site of the Garden Bridge on the South Bank, as an Asset of Community Value.  This means that before the freehold of the land is transferred, or a lease of the land of more than 25 years is granted, in each case to allow the construction of the bridge, the land will first have to be offered to the community.  If a community interest group expresses an intention to submit a bid in the initial 6 week moratorium period, a further four and a half month moratorium will be triggered.  Only after that moratorium can the land be sold or leased.  Although there are ways to avoid the constraints, given the tight timescale for construction of the Garden Bridge, to fit with the Thames Tideway Tunnel construction, this delay could potentially cause issues.

How these local challenges are dealt with on large and politically prominent projects will be an interesting test of the Government’s commitment to Localism.  This is particularly topical following the Queen’s Speech announcement that planning applications for wind farms over 50 megawatts will be decided by local councils rather than under the Nationally Significant Infrastructure Projects regime, and the recent Ministerial Statement requiring proposals for wind energy development to be refused planning permission unless the site is identified in a Local or Neighbourhood Plan, and the proposal has the backing of affected communities.  Are we really entering a phase of power to the people?