Neighbourhood Planning LRM Planning 22 nd February 2018
Presentation Aims • Relevance of neighbourhood planning • National picture • Progress in the South West • Key decisions & legal update • How to engage & influence
Background • Localism Act 2011 – no requirement to prepare • Communities shape development at local level • Used in determination of planning applications • Lead by Parish/Town Council or unelected forum • Government committed – Neighbourhood Planning Act, Written Ministerial Statement, Housing White Paper & funding to 2022
Examination • Independent Examination – hearing if examiner considers necessary • Basic Conditions 1) Regard to national policy & advice; 2) Special regard to preserving listed building, setting or features of special architectural or historic interest; 3) Special regard to preserving or enhancing conservation area; 4) Contribute to achievement of sustainable development; 5) General conformity with development plan strategic policies; and 6) Do not breach and be compatible with EU obligations. • Examiners recommendation not binding • Yes/No referendum to decide if ‘made’
National Picture Stage Number Designated 2155 Pre-submission draft 733 Submitted 571 Examined 453 Made 349 Source – Planning Resource 31/10/2017
Regional Picture Area Applied for/ Adopted Designated Cornwall 86 5 Devon 121 8 Dorset 32 3 Somerset 60 11 Wiltshire 68 11 Source – Planning Resource 31/10/2017
Regional Picture • Cornwall, East Devon & South Hams leading the way • Role identified in Local Plans for bringing development forward – Cornwall, Teignbridge, East Devon and others • Tend to be rural, but include larger settlements – St Ives, Newton Abbot, parts of Plymouth & Exeter • Whilst many do not allocate sites there are exceptions • 10% more housing than would have otherwise been delivered?
Recent Updates • Neig eighbourhood Pl Planning Act ct • Emphasises importance • Weight given to plans that have passed referendum • Provision for modification • Ho Housing White Paper • Supports neighbourhood planning • Proposed NPPF amendments (set out design expectations, confirm can allocate sites) • Housing requirement figure from LPA • Additional funding • Writ itten Min inisterial St Statement
Key Decisions • R (oao DLA Delivery Ltd) v. Lewes DC – no requirement for making neighbourhood plan to await adoption of up-to-date Local Plan • R (oao Gladman Developments Ltd) v Aylesbury Vale DC – neighbourhood plan can allocate sites, determine housing numbers and define settlement boundaries in the absence of an up-to-date Local Plan • Hoare v. Vale of White Horse – conflict with one strategic policy does not mean collectively neighbourhood plan not in ‘general conformity’ • R (Legard) v. (1) Royal Borough of Kensington and Chelsea (2) St Quintin and Woodlands Neighbourhood Forum [2018] – allegation of apparent bias and procedural unfairness • Devizies, Wiltshire – SoS found neighbourhood plan policy limiting site size should be applied flexibly. S38(6) test is a balance with breach of one policy does not been breach of plan as whole (APP/Y3940/V/15/3/142170)
Key Decisions • Holmes Chapple, Cheshire East – SoS allowed appeal but acknowledged frustration of community with made neighbourhood plan and that if the LPA were delivering housing the planning balance would have been different • Wivelsfield, East Sussex – SoS refused 95 homes due to conflict with neighbourhood plan • Hassocks, West Sussex – SoS noted that allowing an appeal for 97 homes may undermine local confidence in neighbourhood planning (APP/D3830/W/14/2226987) • Yapton, West Sussex – SoS upheld decision to refuse giving substantial weight to neighbourhood plan in area with 3 year housing land supply • Sandbach, Cheshire East – SoS upheld decision to allow appeal but acknowledged role of community in preparing neighbourhood plan and that housing situation of LPA means plan contains policies that already out of date.
Neighbourhood Planning Written Ministerial Statement Duncan Moors
Richborough Estates-v-SoS CLG (2018) EWHC 33 Challenge against Gavin Barwell’s WMS issued on 12 December 2016: … ..This means that relevant policies for the supply of housing in a neighbourhood plan, that is part of the development plan, should not be deemed to be 'out-of-date' under paragraph 49 of the National Planning Policy Framework where all of the following circumstances arise at the time the decision is made: • This written ministerial statement is less than 2 years old, or the neighbourhood plan has been part of the development plan for 2 years or less;
Richborough Estates-v-SoS CLG (2018) EWHC 33 • The neighbourhood plan allocates sites for housing; and • The local planning authority can demonstrate a three-year supply of deliverable housing sites.
Richborough Estates-v-SoS CLG (2018) EWHC 33 Five grounds of challenge 1. The WMS was inconsistent with paragraphs 14 and 49 of the NPPF and in having the effect of amending paragraph 49 without explicitly doing so represented an approach which was irrational and unlawful; 2. The Government had made errors of fact in the research that was relied upon in formulating the policy; 3. The WMS was invalid for uncertainty and confused given a lack of clarity as to how the three- years’ supply was to be calculated;
Richborough Estates-v-SoS CLG (2018) EWHC 33 4. Irrationality in the face of the stated intention of the NPPF to “ boost significantly the supply of housing “; 5. Breach of legitimate expectation that there would be public consultation before planning policy for housing was changed by the WMS.
Richborough Estates-v-SoS CLG (2018) EWHC 33 Brief chronology: • 12 December 2016 - WMS issued • 30 December 2016 - Pre-action protocol letter • 20 January 2017 - Govt Legal Department response dismissed all five grounds • 25 January 2017 - Proceedings issued • 7 March 2017 - Proceedings adjourned pending the decision in Suffolk Coastal DC-v-Hopkins Homes • 10 May 2017 – SC judgment in Suffolk Coastal
Richborough Estates-v-SoS CLG (2018) EWHC 33 Brief chronology (continued): • 10 August 2017 - NPPG relating to WMS guidance amended following the Suffolk Coastal decision • 7 and 8 November 2017 - Richborough Estates heard by Dove J • 12 January 2018 – judgment handed down
Richborough Estates-v-SoS CLG (2018) EWHC 33 Decision – Dove J Ground 1 – following West Berks case, provided that the policy does not frustrate the operation of planning legislation or introduce matters which are not properly planning considerations at all and is not irrational, the matters which the SoS regards as material or immaterial to the determination of the policy being issued is a matter entirely for the Secretary of State Ground 2 – the evidence was considered as being adequate with the shortcomings acknowledged by the SoS – use of the term ‘ recent analysis suggests ’ indicates that the SoS was not asserting that this was a hard and fast concluded view
Richborough Estates-v-SoS CLG (2018) EWHC 33 Ground 3 – the judge had no difficulty concluding that ‘a three -year supply of housing’ in the WMS means a three -year supply in terms of the exercise for assessing a five-year supply required by paras 47-49 of the NPPF. Ground 4 – the judge held that the SoS had not acted irrationally in issuing the WMS, which it was argued would frustrate the aim to “boost significantly the supply of housing”. The NPPF clearly promotes this as a key priority but it is not an objective that exists on its own isolated from other interests addressed by the NPPF. It isn’t to be pursued at all costs and other objectives of the NPPF. Neighbourhood planning is one such other objective.
Richborough Estates-v-SoS CLG (2018) EWHC 33 Ground 5 – • no statutory requirement for public consultation for planning policy • Narrow way that the ground was pleaded – legitimate expectation that the housebuilders would be consulted based on past practice – didn’t mention others with an interest such as LPAs, community groups and the public • Ground not made on the facts – there are two previous WMSs relating to housing which were not consulted upon – the removal of gardens from previously developed land in 2010 and the second was “Planning for Growth” in March 2011
Richborough Estates-v-SoS CLG (2018) EWHC 33 So what is the application of the WMS following Richborough and Suffolk Coastal: If: • The WMS is less than two years old or the NP has been part of the Development Plan for two years or less; • The NP allocates sites for housing; and • The LPA’s five -year housing land supply calculation demonstrates a more than three but less than five-year supply Then para 49 is requires the planning balance to be struck using the title balance in para 14 and significant weight is to be given to the NP.
Richborough Estates-v-SoS CLG (2018) EWHC 33
Relevance for Developers • Government commitment and number in pipeline • Power to allocate or not allocate sites • Criteria for site selection including ‘community opinion’ • Introducing additional policy requirements • Examination process less rigorous • Tend to be successful at referendum • Range of decisions by Inspectors and Secretary of State
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