In a judgment handed down on 2 October 2020 the Court of Appeal held there was a “gaping hole” in an examiner’s report which failed to explain the departure of a neighbourhood plan policy from national Green Belt policy. The policy, which restricted development on Local Green Space (LGS), was struck down as unlawful.
The offending policy
The case concerned the Norton St Philip Neighbourhood Plan which, following examination, was approved by Mendip District Council.
The specific issue related to the designation of ten parcels of land as LGS, including two parcels owned by the appellant, Lochailort Investments Ltd, and Policy 5 which managed development of those LGSs. Policy 5 stated that development on LGSs will only be permitted “if it enhances the original use and reasons for designation of the space“.
The appellants’ first ground of challenge – and on which they succeeded – was that Policy 5 was fundamentally more restrictive than Green Belt policy, and so failed the basic condition in paragraph 8(2)(a) of Schedule 4B paragraph 8(2) to the Town and Country Planning Act 1990.
A reasoned departure?
One of the tasks of a neighbourhood plan examiner is to consider whether the draft plan meets the basic conditions in Schedule 4B paragraph 8(2) of the Town and Country Planning Act 1990. Only a draft development plan that meets the basic conditions can be put to a referendum and made. The basic condition under paragraph 8(2)(a) is that “having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the order [or plan]”.
Central to the case was paragraph 101 of NPPF which stipulates that policies for managing development within a LGS should be consistent with those for Green Belts. LJ Lewison, giving the leading judgment, stated that paragraph 101 should be interpreted as meaning that policies for managing land within an LGS should be substantially the same as policies for managing development within the Green Belt.
The court agreed with Lochailort that Policy 5 was more restrictive than national policies for managing development within the Green Belt in that:
- National Green Belt policy allows certain development, such as limited affordable housing. Policy 5 only allowed a very small category of development which “enhances the original use and reasons for designation of the space” and would not permit the type of appropriate development allowed under Green Belt policy
- The NPPF permits development in the Green Belt where it is justified by very special circumstances. There was no such provision in Policy 5.
- The Green Belt policy is a “do no harm” test, whereas the Policy 5 test requiring enhancement was a more onerous “make it better” test.
As a result, the Court of Appeal held that Policy 5 was not consistent with national green belt policy, and did not comply with para 101 of the NPPF.
However, non-compliance with the NPPF does not automatically mean that a policy is unlawful – the statute requires no more than that “regard” must be had to it. However, the judgement is clear that “if a neighbourhood plan departs from the NPPF it must be a reasoned departure”. In this case no reasons for the departure were given. Lewison LJ stated that “put bluntly, there is a gaping hole in the reasoning in this respect”. Policy 5 did not satisfy the basic condition in paragraph 8(2)(a) and so was unlawful.
The role of the examiner
The judgment serves as a reminder that the role of an examiner is notably different from that of an inspector in considering a development plan document, such as a local plan. A local plan needs to be “consistent with national policy”, whereas an examiner of a neighbourhood plan has a discretion to determine whether it is appropriate that the plan should proceed having regard to national policy (R (Maynard) v Chiltern DC  EWHC 3817).
That does not mean that a neighbourhood plan cannot lawfully proceed if one of its policies is contrary to the NPPF. However it does mean that a decision maker not only has to take national policies into account but also to observe them and depart from them only if there are clearly stated reasons for doing so (Carpets of Worth Ltd v Wyre Forest District Council  2 PLR 84). The failing here was the complete absence of any consideration of the express need for LGS policies to be consistent with national Green Belt policy.
The ultimate decision of what action to take in light of an examiner’s recommendations falls to the local planning authority. The examiner’s reasoning was plainly deficient but none of the papers before Mendip DC before making a decision to approve the plan considered the question of consistency with national policy either. Had Mendip DC done so – and provided reasoning as to why it would nonetheless in the absence of consistency be appropriate to make the plan – the failing could have potentially been cured. The spotlight on this case may have the effect of actually encouraging neighbourhood plan promoters to be more adventurous and depart from the NPPF in their policy making – but they will need to adventure with reasons.