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Court of Appeal Confirms Full OAN Benchmark for Sensitive Area Developments

We commented on Knight Developments saga applying for 100 homes in the Ashdown Forest last year. Although upholding the High Court’s decision to quash the appeal permission, the Court of Appeal has confirmed that authorities resisting applications in National Parks and AONB will need to push the boat out on the duty to co-operate at the Local Plan stage to avoid being caught out on appeal.

Mitigation certainty

The High Court quashed an Inspector’s decision granting permission following errors in relying on recreational mitigation measures to offset traffic-related nitrogen deposition impacts on the Special Protection Area (SPA) and Special Area of Conservation (SAC).  The Court of Appeal agreed – by failing to identify any ‘solid’ S106 mitigation proposals, it was impossible to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered for the purposes of applying the precautionary principle to assessing SAC/SPA harm.

Exceptional Circumstances

The High Court also rejected the Inspector’s approach to considering Objectively Assessed Needs (OAN) when applying the NPPF116, which states that (emphasis added):

“Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:

  • the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy
  • the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way
  • any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.

The Inspector dismissed the alternative sites put forward by the authority not because they were unsuitable, but because ” the existence of other sites, which collectively still fall short of the full OAN, does not amount to an alternative“. He therefore did not use the constrained version which the Core Strategy was designed to meet (taking the SAC/ SPA and other constraints into account).  The High Court judgment appeared to suggest that alternative sites must be considered in detail, regardless of whether they would meet the FOAN.

Clunking Fist of OAN

The Court of Appeal disagreed:

  • There is nothing in the NPPF requiring alternative sites to be looked at across the whole of a local planning authority’s administrative area, or to an area larger or smaller than that. The area of search will be fact specific.  As a matter of fact, the Inspector had looked at both the local and the wider District housing land supply position.
  • Because most of the district was within the AONB, there were few alternative sites suitable for housing development that were “not equally constrained” as the appeal site.  The view that such other available housing sites were unlikely to meet unconstrained OAN was a matter of planning judgment.

Although it upholds the High Court judgment on the SAC/ SPA mitigation point, the Court of Appeal judgment nonetheless expressly endorses the use of FOAN as the benchmark for considering the relevance of alternative sites in National Parks, the Broads and Areas of Outstanding Natural Beauty. Where up to date Local Plans are adopted to deliver a constrained OAN, these areas are still open to appeals where the level of housing need not being met through the duty to co-operate is less than the up to date FOAN (and the decision-maker is prepared to give meeting needs exceptional weight).

Valued Landscapes Must Be Something Special

In Forest of Dean District Council v Secretary of State for Communities And Local Government& Anor [2016] EWHC 2429 (Admin), the local authority failed to quash the grant of permission for 95 homes in the open countryside on appeal. The development was in an undesignated landscape area. The authority claimed it was ‘valued’ nonetheless (so engaging NPPF 109 – requiring a starting point of “protection and enhancement” rather than a planning balance).

Out of the ordinary

Valued landscape is that which is “out of the ordinary”, rather than designated or simply popular (Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin)). The Inspector decided there were “no particular landscape features, characteristics or elements that demonstrate that the appeal site is in [landscape assessment] terms representative of the wider landscape i.e. a particularly important example which takes this site beyond representing anything more than countryside in general“. However he also concluded that  ‘valued landscape’ must mean a landscape that is considered to be of value because of particular attributes that have been designated through the adoption of a local planning policy document.

The Secretary of State accepted the claimant’s argument, that this was a misapplication of NPPF 109, but resisted quashing of the decision on the basis that the decision would have inevitably been the same. The developer fought back harder, on the basis that the Inspector properly found the landscape not to be valued because it lacked the necessary attributes, and so approached the NPPF 109 policy lawfully.

The claim was dismissed on the basis that while the Inspector’s phrasing was in places “less than optimal”, he had ultimately properly determined the issue having addressed the critical question of whether the landscape had extra-ordinary aspects taking it beyond ‘mere countryside’. The outcome would therefore have been no different.

The status and effect of valued but undesignated landscape is an increasingly common element of objections to greenfield housing schemes. Understanding whether there is any underlying objective basis for local perception of value is crucial to deal properly with these issues.

The need for focus on conditions (and not descriptions) in Section 73 applications

The consequences of failing to restrict use by imposing a condition were highlighted in a recent appeal decision concerning a DIY retail unit in South West London.

Both the original planning permission for the retail unit and a subsequent section 73 permission (granted in 2010) included a condition to restrict the sale of non-food goods.  However, the final section 73 permission granted in 2014 contained no such condition.

In 2015, the appellant sought a lawful development certificate permitting use of the premises for purposes within Use Class A1 without restriction on the goods that could be sold. Notwithstanding the lack of a condition restricting use, the Council refused.  Consequently, the applicant appealed citing the decision in I’m your Man v Secretary of State [1999] 77 P. & C.R. 251, which held that where a limitation is to be imposed on a permission granted pursuant to an application, it must be done by condition.

The Council contended that the original conditions were incorporated by reference to the previous permissions or should be implied, referring to the Reid case which held that it is permissible to impose conditions by reference to an earlier planning permission.

However, the Inspector rejected the Council’s arguments, finding that the principles from Reid could not reasonably be extended to the creation and incorporation of an entirely new condition which does not appear on the 2014 permission other than in the description, in accordance with the decision in Dunnett Investments.  The Inspector held that no condition restricting the nature of the retail use to specific uses falling within Use Class A1 had therefore been imposed on the final planning permission.  Accordingly, the appeal was allowed and the lawful development certificate issued.

So what can we take away from the case?

  1. The importance of conditions controlling use.

The decision in Reid confirmed that, in the case of planning permissions granted under section 73, conditions can be imposed in various ways:

  1. impose fresh conditions mirroring the original conditions save for the variation; or
  2. impose only the varied condition and incorporate the unaffected conditions by cross-reference to the original permission.

However, whichever method is used, any differing conditions must be incorporated in full in the new permission. For certainty, LPAs must adopt a ‘belts and braces’ approach and set out all the conditions to which the new planning permission will be subject, restating any unchanged conditions in full rather than relying on cross-referencing.

  1. The myth that the description of development can be varied by way of a section 73 application persists.

Confusion often arises as a result of overly complex and unclear descriptions of development, which applicants and local authorities seek to amend to accord more closely with the section 73 proposals. However, there is no formal ability under section 73 to amend the description of development.  It is therefore better to avoid references to the use classes, floor areas and number of units in the description of development (where possible), as it invariably acts to constrain the ability to lawfully use section 73 amendments to amend schemes post approval.

Steering clear of amendments to the description of development can help to maintain the focus on varying the relevant conditions, reducing the potential for LPAs to fall foul of this issue. As is clear from the present case, LPAs cannot rely on undefined conditions being imposed or implied into new permissions granted under section 73.

As a final note, we are willing to bet that I’m Your Man will be overturned at some point by the Courts or will be ousted by legislation. A failure to constrain by condition something that was clearly described as limited in the description of development should not, as a matter of fairness, lead to a windfall for the owner and a cost to the community.

Amalgamation of units still at risk

As we have noted previously, the Town and Country Planning Act 1990 (“TCPA”) is clear that the conversion of a single unit into several units requires planning permission. Although the legislation is silent on amalgamation, it may too be a material change of use requiring planning permission (see our 13 May 2014 blog).

In the recent Cheyne Gardens appeal an Inspector dismissed an appeal against Royal Borough of Kensington and Chelsea (“RBKC”)’s decision not to grant a certificate of lawfulness for works to amalgamate two flats into a single dwelling. Planning permission had been refused and the applicant argued that a Certificate should be granted on the grounds that there was no material change of use requiring planning permission.  The analysis centred on two questions:

1          Is the change of use ‘development’?  ap

The appellant argued that the proposals should not be treated as development on the basis of Section 55(2)(f) TCPA and Article 3(1) of The Town and Country Planning (Use Classes) Order 1987. Both provide that where a building is used for a purpose of any class specified in the schedule to that Order, the use of that building for any other purpose within the same class shall not be taken to involve development of land. In Richmond upon Thames v SSETR & Richmond upon Thames Churches Housing Trust [2000] this was confirmed as engaged where the combined units were already in a single occupation.

The Inspector refused to apply Section 55(2)(f) and Article 3(1) on the basis that the two flats in this case were in use as two separate dwellinghouses, each occupied by a single household or person. The revised position would be one unit occupied by a single household or person.  Whilst the new arrangement, by virtue of the amalgamation, would be used for one of the uses within Class C3, it would not be the self-same building in the before and after scenarios.  The amalgamation was therefore development capable of amounting to a material change of use.

2          Is the change of use material in planning terms?

Richmond established that the extent to which a particular use fulfils a legitimate or recognised planning purpose (in terms of a purpose relating to the character of the land) is relevant in deciding whether a change from that use is a material change of use.   In particular, the loss of a particular type of residential accommodation where that loss was resisted by specific policies.

RBKC put forward evidence that de-conversions and amalgamations were anticipated to result in the loss of 400 homes over a five year period. Set against that, London Plan Policy 3.3 imposes a minimum 10 year housing building target of 7,330 dwellings for RBKC, with an annual monitoring target of 733 homes.  The Inspector considered that the loss of one unit should be considered against the annual target.  Despite accepting that this would be an “almost infinitesimal change” (and the loss of the single unit was under the 5 unit threshold set in the RBKC policy) he nonetheless decided that it would “as a matter of fact and degree have a significant impact in planning terms” concluding that circumstances had “changed significantly” since the adoption of that policy.

So what?

The focus of recent amalgamation appeals has been on the materiality of the change, rather than the question of whether there has been a change of use. The decision reflects the approach applied by the High Court in June, quashing CLEUD and Section 78 appeals on the basis that the Inspector should have taken account of generalised housing need arguments despite the lack of a specific policy threshold.

Although there is real scope to achieve permission on the basis that the loss of supply is clearly de minimis, the Cheyne Gardens decision confirms that decision makers will continue to treat general housing supply policies as a basis for regarding small amalgamations as material even though more specific policies on such changes do not necessarily warrant it.  The difficulties of doing so in the absence of such policies are illustrated by the 77 Drayton Gardens decision, in which the Inspector refused to grant a CLEUD (on the basis that a material change had occurred by virtue of amalgamation of two units, treating the existence of restrictive policies as weighing on the ‘threshold’ question of whether a change of use had occurred). He nonetheless quashed the related enforcement notice and granted permission on the basis that evidence of housing need (including for larger units) and actual supply outweighed the conflict with the development plan.

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.

Improving the use of Planning Conditions?

Too many unnecessary and overly restrictive conditions are still routinely attached to planning permissions, driving up costs and impeding development. It is against this backdrop that the Government proposed further reforms in the recently published Neighbourhood Planning Bill aimed at streamlining the use of planning conditions.

Long game

This is not a new objective. Since the Killian Pretty Review in 2008 successive Governments have been on a drive to minimise the use of unnecessary conditions. For instance, in April 2015 the Government introduced the concept of ‘deemed discharge‘, whereby an applicant can treat certain conditions as discharged if the LPA fails to reach a decision in the requisite time frame. Although the intention was admirable, it is debatable whether this reform has been effective given that the power is rarely relied upon in practice.  As we have pointed out before, part of the answer has to be improving the quality of some applications in the first place and giving a less risky route to appeal onerous conditions.

Current proposals

textThe DCLG consultation ‘Improving the Use of Planning Condition’ (the ‘Consultation’), which was launched in conjunction with the Neighbourhood Planning Bill, seeks views on the Government’s proposals to improve the use of planning conditions and closes on 2 November 2016.

There are 2 key elements to the Government’s proposals:

  1. Restriction on the use of pre-commencement conditions without prior approval by the applicant; and
  2. Prohibition of specific types of conditions.

1) Restriction on the use of pre-commencement conditions

LPAs would not be permitted to use pre-commencement conditions without prior approval by the applicant. By giving applicants an earlier opportunity to challenge unnecessary pre-commencement conditions, it is hoped that a consensus can be reached between the parties at the outset and the likelihood of appeals reduced.  Of course, there is a risk that front loading the process will lead to delays in planning applications being determined.  There are several practical implications:

  • Where an applicant refuses to accept a proposed pre-commencement condition the LPA will have a number of options at its disposal: (i) revising the condition so that it is agreeable to the applicant; (ii) allowing compliance with the condition post commencement; (iii) removing the condition in its entirety; or (iv) refusing planning permission.
  • The threat of refusal may do two things. Firstly, force applicants to consider whether they have really included adequate detail in the application itself. The answer will often be ‘no’. Secondly, accept unsatisfactory conditions in order to secure the permission (particularly where the grant of permission is a pre-requisite for the release of funds), and then use Section 73 to seek to remove the offending condition while avoiding an appeal scrutinising the merits of the entire application afresh.
  • The restrictions will not apply to outline permissions. The Consultation does not explain why.  However, the impact of delays caused by pre-commencement conditions is arguably lessened in the case of outline permissions given that development cannot commence until reserved matters have been approved in any event.

2) Prohibition of specific types of conditions

At present, LPAs have a broad power to impose “such conditions as they think fit” providing they meet the tests prescribed in the NPPF, its supporting guidance and case law.

The Government’s proposals are intended to provide greater clarity about conditions that do not meet these policy tests and should therefore be prohibited. The Consultation sets out examples of conditions that are categorised as unacceptable by existing planning practice guidance and seeks consultees’ views on whether such conditions should be expressly prohibited through legislation.

Given the relevant tests for using conditions are already enshrined in the NPPF and the example conditions set out in the Consultation are effectively prohibited (albeit through guidance rather than statute), the purpose served by this aspect of the reforms is questionable. A more productive use of this legislation would be to use the conditions as a benchmark for reasonableness, and allow binding decisions on them, via the mooted Dispute Resolution Service under the Housing and Planning Act 2016.

Conclusions

The reforms are unlikely to herald a new era in which conditions are used conservatively and pre-commencement conditions are consistently agreed upfront without the intention of resorting to Section 73. Bolder reform, providing a quicker right of appeal or up front, binding dispute resolution on this specific point, would be a much better outcome.

High Court clarifies application of presumption in favour in heritage harm case

high courtThe High Court has provided further guidance on the application of the presumption in favour of sustainable development (paragraph 14 of the NPPF) in Forest of Dean District Council v Secretary of State for Communities and Local Government & Another [2016] EWHC 421 (Admin). The case is helpful for authorities resisting appeals where there is an absence of five year housing land supply.

Permission was granted on appeal for a housing scheme in the absence of a five year housing land supply (HLS). The Inspector applied NPPF49 (which engages the NPPF14 presumption in the absence of a 5 year HLS). The presumption recommends approval where there is no 5 year HLS, unless “the adverse impact of doing so would significantly and demonstrably outweigh the benefits, … or specific policies in the NPPF indicate that development should be restricted.” That includes where the plan has only recently been adopted (Woodcock Holdings Limited v Secretary of State for Communities and Local Government and Anor [2015] EWHC 1173 (Admin)).  NPPF126 to 134 provide specific policies on designated heritage assets.  NPPF134 requires less than substantial harm “to be weighed against the public benefits of the proposal…“.

The scheme was acknowledged to cause ‘less than substantial’ harm to the character and appearance of a nearby Grade II listed farmhouse. The Inspector treated that harm as outweighed by the overall public benefits. The authority’s grounds of challenge under section 288 of the Town and Country Planning Act 1990 included that he had wrongly applied the presumption, by failing to treat NPPF134 as a policy indicating that development ‘should be restricted’.

Coulson J held that NPPF134 is a policy “restricting development” (despite the fact that it does not contain a restriction), interpreting that phrase broadly.  With the presumption disengaged, an “unweighted” cost-benefit balancing exercise must be undertaken.

The finding of harm (regardless of whether it is “substantial” for NPPF purposes) gives rise to a statutory, albeit rebuttable, presumption against the grant of consent (South Lakeland District Council v Secretary of State for the Environment and Another [1992] 2 AC 141) being outweighed by material considerations. Applying the first, weighted, limb on its own meant that it was likely that the wider statutory presumption of refusal where there is any harm to designated heritage assets had been lost.

There is likely to be a broadening of the search for ‘restrictive’ policies in defending refusals. That said, where the decision taker has concluded that there is inadequate HLS and the overarching legal hurdle to approving less than substantial harm has been cleared, it should ultimately make little difference to the outcome.

Troubled waters – Equalities Duty and Alternative Sites Failings Fatal

bridgeThe public sector equality duty under Section 149 of the Equality Act 2010 (PSED) is playing an increasing role in planning decisions. In LDRA LTD & ORS v Secretary of State for Communities and Local Government & ORS [2016] EWHC 950 the High Court quashed an Inspector’s decision to grant permission on appeal for an onshore office and warehouse facility to serve offshore wind farm installations.  The authority had refused permission on the grounds of unacceptable amenity harm to adjacent residential occupiers.  The Inspector considered the proposals at an Inquiry and attended an accompanied site visit, during which access to the riverside for local people and the existence of alternative sites with lesser potential impacts were pointed out.  The claimants challenged under Section 288 of the TCPA 1990.

The High Court agreed that the Inspector had failed to give effect to the PSED when considering effects on access to the riverside area for disabled people.

Equalities duties

Section 149 requires authorities to have “due regard to the need” to “eliminate discrimination […] [and] advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not […]” when exercising functions. Disability is a relevant “protected characteristic”.  The key principles are that:

  • The duty is not a duty to achieve a result but to have due regard to the need to achieve the statutory goals in a way that is integral to the decision making process (R (Baker) v Secretary of State for Communities and Local Government [2009] PTSR 809).
  • Decision makers must be properly informed and are under an inquisitorial duty, requiring rigorous enquiry and reporting (applying R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) and R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 94).

Process matters

Having concluded that only able-bodied people would have the “continuing opportunity to reach the riverside” near the development, the Inspector was held to have failed to discharge the PSED in the absence of: detailed consideration of the value of the existing amenity to disabled people, comparable alternatives, practical difficulties which disabled people and carers would experience and the loss of a resource (access to a car park) would not merely be less convenient, but may result in an inability to access the riverside at all.  The fact that the PSED issues had not been identified as a “main issue” in the appeal was irrelevant to the decision to quash.

Conflicting approaches

The Judge held that Section 31 Senior Courts Act 1981 – preventing a quashing order where it is “highly likely” the outcome would not have been substantially different had the PSED been applied – did not apply given that the PSED is concerned with process, not simply outcomes. This is presumably based on the public interest exception to Section 31(1) under Section 31(2B).  Contrast this with the Court of Appeal’s approach in West Berks accepting a retrospective Equalities Impact Assessment as ‘adequate and in good faith’ to be able to discharge the PSED because a different process “would not have led to a different conclusion“.

Alternative solutions

The Judge also held that the claimants had been substantially prejudiced by the Inspector’s failure to address an alternative site which may well have influenced the outcome. She rejected the suggestion that the Inspector was not required to absorb evidence during the site visit, holding that the purpose of the visit was to identify and view possible alternative sites.  Failing to take into account the identification of the alternative made during the site visit was a breach of natural justice/procedural fairness.

High Court allows relaxed view of needs on appeal

high courtThe High Court has adopted a flexible approach to dealing with ‘objectively assessed needs’ (OAN) on a planning appeal in Dartford Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 649 (Admin). In considering an appeal against refusal of permission for housing, the Inspector had to decide whether the authority could demonstrate a 5 year supply of deliverable housing sites against OAN.  If not, NPPF policy recommends that restrictive local housing policies are supplanted by the presumption in favour of permission.

The Core Strategy included a ‘maximum’ housing delivery figure (based on environmental constraints) and a lower figure (at which active management of under-delivery would be needed). At the lower figure, the authority could show a 5 year supply. Neither the appellant nor the authority appear to have submitted OAN evidence, despite the ability to do so (West Berkshire District Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 267 (Admin)).

The Inspector found that the scheme merited approval regardless of the OAN position. He also explained that the authority was not likely to meet full OAN judged against the maximum housing figure and so applied the NPPF presumption. The authority challenged the decision under Section 288 of the Town and Country Planning Act 1990, on the basis that his reasons were inadequate (including why the upper figure was the correct measure of OAN). The High Court dismissed the challenge, on the basis that the upper/lower level figures provided a ‘context for assessing housing need’ and that nothing in the NPPF should prevent decision makers from being able to use a range of figures to assess whether there would still “be advantage in the grant of permission“.

The judgment purposively and pragmatically allows for range-based approach to assessing OAN where there is no real demographic evidence available on appeal, and emphasises the undesirability of appeal Inspectors being diverted into a statistical “sojourn in a garden of delights” on OAN.  Care is needed, though:

  • It does not address the situation where reliance on OAN is required to ‘switch off’ restrictive housing policies and engage the NPPF presumption.
  • It also recognises that “a more thorough analysis would have been required” in those circumstances, consistent with the finding in West Berkshire that the Inspector had to “identify an annual housing requirement in the district. If he failed to do so he would not have been able to identify whether the council was able to demonstrate whether it had a five year supply of housing land.”
  • The maximum figure the Inspector used for the upper limit of the OAN ‘range’ in Dartford appears to have been derived from a historic Regional Spatial Strategy policy set by reference to policy-based environmental constraints.  It is hard to reconcile this with the need to avoid OAN assessments being artificially limited by such ‘policy on’ considerations (St Albans City and District Council v (1) Hunston Properties Limited and (2) Secretary of State for Communities and Local Government [2013] EWCA Civ 1610).

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.