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.


Prematurity back in its box again

The publication of the NPPF in March 2012 raised questions about the approach to prematurity.  Refusal on prematurity grounds has been rare, but Nick Boles announced a 12 month extension in July 2014 of the recovery of planning appeals for consideration by the Secretary of State, to include those where a Neighbourhood Plan (NP) has been made or submitted.  It was anticipated that NPPF policy would be applied – with limited weight being given to emerging NPs, becoming stronger as submission, examination and referendum stages had progressed (and depending on how far objectively assessed needs (OAN) are being met).

The issue has been political football, though, receiving a big kick before the General Election.  Three recovered appeal schemes – between 100 and 350 homes – (at East Stafford, Sayers Common and Devizes) were refused against Inspector recommendations.  Early stage NPs trumped inadequate housing land supply.  The fallout helpfully clarifies the correct approach.

imageGroundhog Day?

The NPPF deals with the situation where there is an emerging but early stage plan – and tells decision makers to ‘get on with it’ unless the proposals conflict with the NPPF policies themselves. It says nothing about  ‘prematurity’ – predetermination of plan-making choices by the grant of planning permission. CLG consented to judgment in the Barton Farm, Winchester case in 2012, having refused permission for Cala Homes’ scheme on grounds of prejudice to a Neighbourhood Planning process still in its early infancy.

Since then, the Planning Practice Guidance has filled the gap, accepting that prejudice to very early stage plans should rarely justify refusal, and only where:

  • the adverse effects would clearly, significantly and demonstrably outweigh the benefits;
  • in the case of NPs, they have passed the 6 week local authority publicity period; and
  • there is some fundamental harm to the plan itself as a result.

Judicial clarity

That was not the case at Sayers Common, where the Secretary of State overturned his Inspector’s recommendation to allow Woodcock Holdings’ appeal against the local authority’s decision (to refuse permission – solely on the grounds of prematurity relative to the Hurstpierpoint and Sayers Common 2031 Neighbourhood Plan, HSCNP). The HSCNP had been through Parish and District Council publication stages and, by the time of the Secretary of State’s decision, subject to Examination in Public. It was further down the line than the entry level requirement for prematurity in the PPG.  The Secretary of State refused permission based on conflict with the emerging plan policies and prematurity (despite accepting that Woodcock’s appeal satisfied NPPF policies).

The judgment in the resulting legal challenge helpfully draws a clear line under all this, finding the decision unlawful on the basis that:

  • Emerging plan policies must be treated as ‘out of date’ where there is no 5 year supply of housing judged against objectively assessed housing needs [1] (paragraph 114 of the judgment). That includes emerging NPs, which subside beneath the NPPF policies themselves as a result (unless the NP clearly provides for more than the OAN);
  • Clear reasons are needed for giving meeting OAN less weight than the Neighbourhood Plan process (and for refusing to following the approach recommended in the PPG);
  • The NP adoption test is far more limited than for Local Plans.  Issues in play for planning applications may not even be covered by the NP process. An application cannot, rationally, be premature to a process that is not considering the same issues. For example, the essential question of whether enough land has been allocated to meet OAN.The judge also held that the relevant parts of the HSCNP were inconsistent with the NPPF and so would be unlikely to either survive examination or allow a finding of prematurity.

Eric Pickles also consented to judgment in the East Stafford and Devizes case in the same week as this judgment was handed down

Back to the Future

As such, Woodcock Holdings sets the applecart back upright, confirming that:

  • for conflict to be relied on, emerging policies should be at a significantly advanced stage and consistent with meeting OAN (regardless of whether they are Local or Neighbourhood Plans); and
  • for prematurity to be relied on, the plan-making process itself should be working on the basis of meeting OAN that have been tested by independent examination.

Where an NP has explicitly set out to meet OAN in full (and those OAN have already been found robust at EiP), the situation may be different. Few NPs are prepared on the basis of either a tested OAN or a desire to meet needs in full or over-allocate sites though.

[1] Where there is no objective assessment (i.e. one that has been through the NPPF Examination in Public process and found to be sound), there can be no 5 year supply.

Prematurity goes back into the box

Under the plan-led system, it has been rare to see refusals of otherwise acceptable schemes on the grounds that they would prejudge the outcome of the plan-making process. The courts have historically made clear that plan preparation cannot be a rubber-stamp reason for refusal.

The NPPF addresses the weight to be given to emerging plan policies, but says nothing about prematurity. The government’s January 2005 guidance note The Planning System: General Principles, which survived publication of the NPPF last March, advises that refusal on prematurity grounds is “seldom justified” where a local plan is at the consultation stage and has no early prospect of submission for examination, recognising that the resultant delay in determining use of the land would be unacceptable.

Policy on prematurity concerns the crucial balance between planning and delivery. A loose application of prematurity objections flies in the face of the General Principles and the urgency injected by both the NPPF and the Planning for Growth agenda. The 2005 statement still sets the bar high for those seeking to postpone growth until another day.