Planning Law and Practice for Parish Councils. Landmark Chambers Monday 30 April 2018

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1 Planning Law and Practice for Parish Councils Landmark Chambers Monday 30 April 2018

2 Making effective objections on appeals Heather Sargent 30 April 2018

3 Object to the initial application for planning permission Objections should relate to planning issues only e.g. Planning policy support (local and national) for this type of development in this location (matters such as Green Belt, settlement boundaries) Impact on highways Air quality impact Noise / odour / overlooking and other impacts on neighbour amenity Visual impact and impact on character of the area Ecological impact (protected habitats and species) Impact on heritage assets (listed buildings and Conservation Areas) Design

4 Maintain the objection on appeal If the local planning authority ( LPA ) refuses planning permission or grants it subject to planning conditions that the developer is not content with: developer might appeal to the Secretary of State ( SoS ) The majority of appeals are determined by an Inspector on behalf of the SoS. Some are first considered by an Inspector who makes a recommendation to the SoS, with the SoS subsequently determining the outcome of the appeal Consult the reasons for refusal ( RfR ) relied on by the LPA in its decision notice refusing the application for planning permission

5 Appeal procedure Written representations: ttachment_data/file/514295/taking-part_planning-written_april_2016.pdf Hearing: ttachment_data/file/514291/taking-part_planning-hearing_april_2016.pdf Inquiry: ttachment_data/file/514292/taking-part_planning-inquiry_april_2016.pdf

6 Appeal procedure See also the general PINS guide to appeals: ploads/attachment_data/file/677953/procedural_guide_planning_app eals_version_1.pdf

7 Participation at an inquiry Rule 6 party status or not? Rule 6 = r. 6 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 Significance: entitled to appear at the inquiry. SoS will require submission of a statement of case. Entitled to call evidence (submit formal proofs of evidence) and to cross-examine Appellant s witnesses Whether to ask for Rule 6 party status: Resources Sufficient to rely on LPA?

8 Participation as a non-rule 6 party Attend at the beginning of the inquiry so that the Inspector knows that you want to speak The LPA's witnesses usually go first and then third parties either go after the LPA's witnesses (before the Appellant's witnesses), or after both LPA and Appellant witnesses (i.e. before closing submissions) You will be allowed to ask questions of the Appellant's witnesses but not of the LPA's witnesses

9 Participation as a Rule 6 party PINS guidance: hment_data/file/514284/guide_rule_6_planning_april_2016.pdf 2.1 If you wish to take a very active part in an inquiry you should write to our Case Officer requesting Rule 6 status. However, to avoid making the inquiry too repetitious, we encourage participants with similar views to group together and elect a spokesperson to appear at the inquiry on the group's behalf. You should state who you are representing (for example, a parish council or local community group), why you want Rule 6 status and briefly explain what you can bring to the inquiry that another party may not. [ ]

10 Participation as a Rule 6 party 2.2 Rule 6 parties can offer significant value to the inquiry process. However this is only the case where Rule 6 parties add substantively to the case being made by the local planning authority or the appellant [ ] 2.4 Depending on whether you oppose or support the appeal or the application you may wish to consult the local planning authority or the appellant or applicant to find out what their position will be at the inquiry to help you decide whether your position can be satisfactorily represented by them. If this is the case, you would not need to ask us for Rule 6 status.

11 The substance of your objections S. 38(6) of the Planning and Compulsory Purchase Act 2004: If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. Identify the respects in which the proposed development fails to accord with the development plan: see the RfR / officer report Explain why other material considerations do not indicate that planning permission should be granted

12 The substance of your objections N.b. one material consideration is the National Planning Policy Framework ( NPPF ): so also identify the respects in which the proposed development fails to accord with this statement of national planning policy Para. 14 of the NPPF: if the development plan is absent, silent or relevant policies are out-of-date, planning permission should be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits (assessed against NPPF policies) or specific NPPF policies indicate that development should be restricted Applies (for housing development) if the LPA does not have a 5 year housing land supply: para. 49 NPPF

13 And finally Aligning your case with the LPA s case Avoid ineffective duplication Properly evidence additional arguments Avoiding uphill battles Sites allocated for the proposed use in the development plan: little point objecting in principle SoS likely to give significant weight to the position of statutory consultees Costs Unreasonable behaviour See Government s Planning Practice Guidance

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15 Issues for Parish Councils in High Court challenges Sasha Blackmore April 2018

16 Overview: Issues for Parish Councils in High Court challenges A. Issues in Getting Started B. Issues in Making a Claim C. Issues at Oral Permission Hearings D. Issues Post Permission and Substantive Hearings E. Issues following a Hearing

17 A. Issues in Getting Started 1. Identifying if you have a claim 2. Bringing together a team 3. Pre-Action steps: compliance/non-compliance with the PAP ( Pre Action Protocol process) 4. Pre-action specific disclosure? 5. EIR and FOIA requests?

18 B. Issues in Making A Claim The claim form - key points: Identify Claimant or Claimants (NB costs) Facts and Grounds Identify decision challenged Identify relief sought Identify Interested Parties Other Orders? Aarhus Costs Caps. What are they? Who Qualifies? How do we get one?

19 B. What is an Aarhus Costs Cap? (1) An Aarhus Costs Cap is a specific term used to define a type of costs cap which the CPR gives to some parties bringing some environmental claims The definition is in CPR r defines an Aarhus Convention Claim as follows: (a) Aarhus Convention claim means a claim brought by one or more members of the public (i) by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1) or 9(2) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 ( the Aarhus Convention ); or (ii) by judicial review which challenges the legality of any such decision, act or omission and which is within the scope of Article 9(3) of the Aarhus Convention; (b) references to a member or members of the public are to be construed in accordance with the Aarhus Convention.

20 B. What is an Aarhus Costs Cap? (2) The cost cap is set out at CPR r.45.43: (1) Subject to rules and 45.45, a claimant or defendant in an Aarhus Convention claim may not be ordered to pay costs exceeding the amounts in paragraph (2) or (3) or as varied in accordance with rule (2) For a claimant the amount is (a) 5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person; (b) 10,000 in all other cases. (3) For a defendant the amount is 35,000. CPR r.45.42(1) provides that: Subject to paragraph (2), rules to apply where a claimant who is a member of the public has (a) stated in the claim form that the claim is an Aarhus Convention claim; and (b) filed and served with the claim form a schedule of the claimant s financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth Therefore, a claimant may not obtain the benefit of a costs cap unless they have filed and served a schedule of their financial resources as specified.

21 B. But I heard that. Various changes over the last few years altering what an Aarhus Costs Cap means. a) public authorities no longer benefit but best view is Parish Councils do; b) Amended Rules give a power to vary the costs cap previously was fixed c) Amended Rules require claimants to file and serve schedule of financial resources; d) New Amended Rules amend this further e) Amended Rules provide multiple parties are treated individually f) Amended Rules provide that certain statutory reviews fall within scope g) Amended Rules have changed that a defendant can challenge Aarhus Convention costs protection on the standard, rather than indemnity basis

22 B. What Does All This Mean? (1) Firstly, to qualify for an Aarhus Costs Cap, the claim has to be brought by one or more members of the public. Rules now seek to exclude public authorities from the scope of protection (contrary to in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2015] EWCA Civ 203; see In ACCC/C/2014/100 and 101 ) Current view : Parish Councils included. Arhus Compliance Committee (ACC) consider community councils in Scotland are within public (ACCC/C/2012/68)

23 B. What Does All This Mean? (2) Secondly, it means you have to give a schedule of the claimant s financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth A claimant has to provide: a schedule of the claimant s financial resources, verified by a statement of truth the claimant s significant assets, liabilities, income and expenditure; details of the aggregate amount of any financial support which any person has provided or is likely to provide to the claimant BUT

24 B. What Does All This Mean? (3) To vary a cap, the Court will consider whether proceedings will be considered prohibitively expensive if their likely costs, including court fees, fail either the subjective or objective tests: subjective test: do the likely costs exceed the financial resources of the claimant? objective test: are the likely costs objectively unreasonable having regard to the factors at r.45.44(3)(b)? (i) the situation of the parties; (ii) whether the claimant has a reasonable prospect of success; (iii) the importance of what is at stake for the claimant; (iv) the importance of what is at stake for the environment; (v) the complexity of the relevant law and procedure; and (vi) whether the claim is frivolous.

25 B. What Does All This Mean? (4) AND the cap can now be varied after it has been set New Amended Rules - April 2018 (seeking to apply R (Royal Society for the Protection of Birds) v Secretary of State for Justice [2017] EWHC 2309 (Admin)) Rules The (Amended) Rules provide that where a cap is sought to be varied: by a claimant it must be made in the claim form and provide the claimant s reasons why, if the variation were not made, the costs of the proceedings would be prohibitively expensive for the claimant by a defendant it must be made in the acknowledgment of service and provide the defendant s reasons why, if the variation were made, the costs of the proceedings would not be prohibitively expensive for the claimant and it must be determined by the court at the earliest opportunity. It is also provided that (emphasis added) [a]n application to vary may be made at a later stage if there has been a significant change in circumstances (including evidence that the schedule of the claimant s financial resources contained false or misleading information) which means that the proceedings would now (a) be prohibitively expensive for the claimant if the variation were not made; or (b) not be prohibitively expensive for the claimant if the variation were made. Where such an application is made: by the claimant it must be accompanied by a revised schedule of the claimant s financial resources or confirmation that the claimant s financial resources have not changed and provide reasons why the proceedings would now be prohibitively expensive for the claimant if the variation were not made by the defendant it must provide reasons why the proceedings would now not be prohibitively expensive for the claimant if the variation were made.

26 B. What Does All This Mean? (5) Fourthly, it means in most cases you want to have one claimant not many claimants. Each Claimant is responsible for their own cost cap

27 B. What claims are covered? (i) judicial reviews; most/many planning judicial reviews likely to be caught as environmental (ii) review under statute e.g. statutory review (not appeals) such as s. 288; (iii) does not apply to appeals other than appeals brought under section 289(1) of the Town and Country Planning Act 1990 or section 65(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which are for the purposes of this Section to be treated as reviews under statute. But NB protection only extends beyond judicial review to (ii) and (iii) above if the claim challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1) or 9(2). Article 9(1) and (2): So basically only if challenge EIR, EIA, IED take advice if not a judicial review For other cases outside Articles 9(1) and (2), e.g. those within Article 9(3) protection still only applies to judicial reviews, not statutory reviews or appeals. Art. 9(3) administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment

28 B. What if our case isn t in these catergories? Many might not be, e.g.: Cases such as other statutory review (many s.288 or s.289 TCPA 1990 claims) Other public law claims which are not within judicial review, e.g. appeals to the General Regulatory Chamber of the First Tier Tribunal private law cases (e.g. nuisance). NB: Non environmental JRs will usually fall within the scope of applying for Cost Capping Orders In all these cases: take advice. Inside different legal structure: (a) Cases where no EU law element: old Corner House principles. These generally have more room for judicial discretion so may be more favourable to claimants, but (for Parish Councils) degree of public interest can be an issue for localised impacts, and uncertainty e.g. financial requirements. (b) Cases where EU law makes Aarhus directly effective, apply Art 9(4) directly to avoid prohibitively expense: R (Garner) v Elmbridge DC [2011] 3 All ER 418. Probably this is mainly/only cases relating to Industrial Emissions Directive 2010/75/EU as main category of case where EU law is directly effective is EIA cases, which are caught (c) Cases where EU law in play but no direct reference to Aarhus, e.g. Habitats, Strategic EIA: see C-240/09 Lesoochranárske Zoskupenie VLK [2011] 2 C.M.L.R. 43 while Art. 9(3) not of direct effect, it was for the national court to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention. Many Habitats cases however likely to be EIA cases.

29 Issues in making the claim other considerations 1. Venue where is the LPA/Parish? Is their substantial the local interest? London or transfer to a regional court? 2. Expedition or urgency - can be sought if justified 3. Interim relief: CPR Part 25 PD: if injunction is necessary to prevent significant environmental damage and to preserve the factual basis of the proceedings take advice because there is a risk of cross-undertakings for damages 4. Summary Grounds of Resistance; served by Defendant s / and Interested Parties if they wish Strategic decisions; Length? Evidence? 5. Reply: Claimant s may wish to serve a Reply 6. Reply to a Reply?

30 C. Oral Permission Hearings 1. Refusal of permission Renewal to Oral Hearing? Tight timetable to renew; 7 days Carefully review case but many cases which are refused on the papers are granted at oral renewal arguability is a poorly defined concept Around 20-25% of cases get permission on the papers Around 60% of cases which renew get permission at the oral hearing Public Law Project did research which showed that permission grants range from Judges who grant permission in 46% of cases to a judge who granted 0% (which was in immigration) 2. OPH Hearings They are usually short; they are supposed to be 30 minutes Skeleton arguments; direct them to arguability Knowing your judge

31 D. Issues Post Permission and Substantive Hearings 1. Main issue for Parish Councils is usually evidence Defendants: main opportunity to serve evidence is with Detailed Grounds of Defence Claimants, Defendants, and IPs: Duty of Candour Claimants often want to put in further evidence 2. Other issues which may come up for Parish Councils include Cross examination Disclosure orders Issues as to what to include in bundles

32 E. Issues following a Hearing So you win what next? Always advise clients to think about what happens if/when you win think hard before bringing a case (time, expense) because What happens next after success remitted appeal / fresh decision If you know what you want to happen next, there may be parts of a judgment that can help that path if you ve thought about it Knowing that path impacts how you run a case Thinking medium and long-term Neighbourhood Plans? Allocating housing? Always advise clients to also think about what happens if you lose Impacts other cases especially in a Parish / local authority area Influencing development in an area takes place over time

33 Issues for Parish Councils in High Court challenges Sasha Blackmore April 2018

34 Influencing and challenging the content of Local Plans Matthew Dale-Harris Landmark Chambers 30 April 2018

35 The Talk Overview of the process Understanding the enemy Top tips on: Pre-examination representations How to participate effectively in an Examination in Public

36 The Process 1. EVIDENCE GATHERING 2. ISSUES & OPTIONS 3.FIRST DRAFT 4.SUBMISSION AND EXAMINATION 5. ADOPTION

37 The LPA s objectives (1) To adopt a local plan (2) To implement political objectives of the Council (3) To avoid legal challenge: Does plan comply with environmental and procedural requirements (inc duty to co-operate)? Is it sound? N.B. LPA should submit when happy with plan ; persuading them to amend substantive features becomes progressively harder

38 Introducing the Inspector Job is to help LPA adopt a sound and legally compliant plan Will set the agenda and control process Can be engaged directly through Programme Officer Different styles, but most want to run a tight ship

39 General Statutory right to attend s.20(6) of the 2004 Act if made reps NB seeking to change the Plan Inspectorate issues Guidance: June 2016 (4 th ed) the latest It s a 90% written process even on the main points in issue Tie submissions to either legal points or soundness: Positively prepared Justified Effective Consistent with National Policy Keep track of the draft

40 Tips for pre-submission stages Audience is LPA. Seek to engage as much as possible. Choosing your points: What is key message? What kind of evidence demonstrates your case? Make responses as useful and comprehensive as possible. Respond early and in detail. Political angle

41 Tips for examination Agenda set by Inspector. Possible to intervene by direct communication with the PO/Inspector; Hearing statements: Use executive summary with bold and underlining and cross references to the more detailed text. Ensure key additional evidence (ie photos, reports, news cuttings) are submitted as appendices to the rep. Avoid weblinks Structure around MIQs Consortia/fora can be useful to present a unified front and reduce repetition/inconsistency other parish councils facing similar issues?

42 At the hearings Each day will have an agenda MIQs will guide. Follow agenda where possible. Depending on issue/style of Inspector, LPA will normally be invited to open, then Inspector will ask for submissions from the floor. Expect only one bite of the cherry/recognise Inspector s priorities Questions often more effective on the substantive issues than assertion/submission aim is to point out areas of deficiency which Inspector will need to probe with the LPA

43 At the hearings (continued) Limited time. Who is going to speak? What is persuasive? Problems with plan. Inspector needs to be persuaded that either plan is unsound or unlawful. Things LPA has not thought about (NB importance of working through evidence base). Detail of policies/allocations can sometimes be something LPA is willing to flex. Cf need for focus

44 Conclusions Early constructive engagement Political pressure, but careful about alienating planners Clear, evidenced submissions focused on realistic goals

45 Good luck!

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47 Getting a Neighbourhood Development Plan Made and Avoiding High Court Challenges Stephen Morgan

48 IMPORTANCE OF NEIGHBOURHOOD DEVELOPMENT PLANS (NDPs) NDPs provide the ability for the local community to directly influence development and the environment in their area A NDP is part of the development plan and thus central to the determination of relevant planning applications Growing importance as seen from the Housing White Paper last year and the Draft Revised NPPF

49 STEP 1: DESIGNATION OF A NEIGHBOURHOOD AREA (s.61g of the TCPA 1990) NP powers can only be exercised in relation to a Neighbourhood Area that has been designated in response to an application by the PC to the LPA. For a PC that can include all or part of the parish and, provided it does, may extend beyond the parish area. If it includes all of the PC s area and no other, the LPA must designate it (Neighbourhood Planning (General) Regulations 2012, reg 5A(1) the Regulations ) There can only be one neighbourhood area for any piece of land and designated areas must not overlap each other. If the LPA consider that the area is wholly or predominantly business in nature they must consider whether they should designate it as a business area. A PC may choose to establish an advisory committee or sub-committee under s.102(4) of the LGA 1972) and appoint local people (who need not be parish councillors) to those bodies they would have voting rights. The terms of reference for a steering group or other body should be published and the minutes of any meetings made available to the public.

50 STEP 2: MOTIVATION & SUPPORT A NP involves a great deal of work and relies upon support from the local community as well as the LPA. The responsibility for preparing the plan rests with the PC, as a qualifying body under the legislation. Motivation? Aim should be to guide development positively and shape the environment rather than block all development. LPAs are required to give such advice or assistance as in all the circumstances they consider appropriate but LPAs are not required to provide funding. Funding is available from central government (up to 9,000 and possibly additional 8,000). Use of consultants but also volunteers required.

51 STEP 3: PREPARATION OF THE PLAN The formulation of the plan is critical and requires an evidence base which the PC must assemble that will include the SEA and an HRA where required. A NDP cannot proceed if a risk of significant effects on a European site cannot be excluded. Some such evidence may already exist (e.g. census data, SHLAA) but other material may need to be commissioned and produced household survey; housing needs assessment; flood risk assessment if not available for the area. New survey work or assessments are likely to be required. Existing Local Plan policies will be important, particularly where they are strategic policies. Care should be taken if carrying out a site selection exercise. Guidance: PPG and see guides from Locality neighbourhoodplanning.org; NPIERS

52 Guiding Criteria-The Basic Conditions (Schedule 4B of the TCPA 1990, para. 8(2)) (a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the plan, (d) the making of the plan contributes to the achievement of sustainable development, (e) the making of the plan is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area), (f) the making of the plan does not breach, and is otherwise compatible with, EU obligations, and (g) prescribed conditions are met in relation to the plan and prescribed matters have been complied with in connection with the proposal for the order.

53 STEP 4: WHAT TO INCLUDE & EXCLUDE (s.38b of the PCPA 2004) (1) The plan must specify the period for which it is to have effect. (2) An NDP may not include provision about development that is excluded development (s.38b(1) of PCPA 2004, s.61k of the TCPA 1990 as applied by s.38b(6) of PCPA 2004): development normally dealt with by a county planning authority e.g. minerals and waste related development development described in Schedule 1 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (as amended) which automatically requires an Environmental Impact Assessment development of nationally significant infrastructure projects (as defined in the Planning Act 2008) (3) A policy should be clear and unambiguous and concise; precise and supported by appropriate evidence.

54 What NDPs include (e.g. Joint Henley and Harpsden NDP ) The Plan should support the strategic development needs set out in the Local Plan and plan positively to support local development and not less than (PPG and NPPF [16]). The Plan should address the infrastructure demands of the identified development. Can include wider community aspirations than those relating to development and use of land but actions relating to these these should be clearly identifiable. Housing allocations: this leads to most legal challenges by aggrieved land owners/developers whose land is excluded. The PPG advises that a NDP propose allocating alternative sites to those in a Local Plan, but a qualifying body should discuss with the local planning authority why it considers the Local Plan allocations no longer appropriate. Employment allocations; town centre redevelopment of sites; open space and environmental matters Local Green Space; community facilities renewal and enhancement of these.

55 Opportunity to be innovative or different Because requirement for general conformity in with strategic policies and looking at these as a whole, there is room for the NDP to depart from / conflict with the LP (see e.g. Kebbell Developments Ltd v Leeds City Council [2018] EWCA Civ 450) Holiday homes exclusion: R (oao RLT Built Environment Ltd) v Cornwall Council and St Ives Town Council [2016] EWHC 2817 (Admin) - evidence base to support this Concerns about transport impact - can include parking provision policy which is more generous than the LP COMING: Design guidance Draft Revised NPPF [124] COMING: Change in detailed Green Belt boundary - Draft Revised NPPF [135]

56 Housing NDP does not have to wait for an up-to-date LP. Does not have to contribute to wider districts housing needs. Tensions result particularly as requirement is only that the NDP be in GENERAL conformity with the STRATEGIC policies of the LP. However, PPG was changed and currently advises that where NPs contain policies relevant to housing supply, these policies should take account of latest and up-todate evidence of housing need. But now Draft Revised NPPF [66] & [67] strategic plans should set out a housing requirement figure for designated neighbourhood areas once adopted will not normally be retested at the neighbourhood plan examination. Where not possible to provide such a requirement figure, the qualifying body may ask the LPA for an indicative figure.

57 STEP 5: PUBLICITY & CONSULTATION Before submitting its NDP to the LPA, the PC must publicise it in a manner that is likely to bring it to the attention of people who live, work or carry on business in the neighbourhood area (Regulation 14(a)). If there are different options considered, there should be engagement on these to narrow and refine options. Must also send a copy to the LPA. Must also consult any consultation bodies whose interests the PC considers may be affected by the proposals (Regulation 14(b) and Schd 1 para. 1) e.g. Natural England, Environment Agency, relevant voluntary bodies, religious groups. This stage gives the PC the opportunity to review the merits of the plan. The PC will need to consider the representations an decide whether to make changes to the proposed plan. Decision-making should therefore be public, transparent and reasoned.

58 STEP 6: SUBMISSION TO THE LPA (TCPA 1990, Sch 4B para 1(2)) The proposed plan itself and a map or statement identifying the area it applies to A consultation statement this should explains what main issues and concerns were raised in the representations to the consultation plan and how they were dealt with (Regulation15(2)) A basic conditions compliance statement A full Strategic Environmental Assessment (SEA) report in accordance with the Environmental Assessment of Plans and Programmes Regulations 2004, reg 12(2), (3), (or a statement of reasons why a report is not required) In accordance with the Habitats Regulations, it is also necessary to demonstrate that the neighbourhood plan either alone, or in combination with other plans and programmes, is unlikely to have a significant effect on any European Sites. Background evidence. Compliance with HR requirements. Summary of proposals and reasons why the plan should be made in the proposed terms.

59 STEP 7: SURVIVE OR THRIVE AT EXAMINATION The LPA must publicise the submitted plan and allow at least 6 weeks for representations. They must also notify any consultation body referred to in the consultation statement. THE PC should usually submit any response to these representations within 2 weeks of that period ending unless Examiner indicates otherwise The LPA has to submit the plan for independent examination where it considers that the legal requirements are met, the publicity and consultation requirements in the Regulations are complied with and the draft plan complies with ss38a and 38B of the PCPA 2004 (re. the meaning of, and provisions that can be made by, an NDP) The plan has to be independently examined the general rule is that this will be done in writing but a hearing will be held if the Examiner considers it is necessary to ensure adequate examination of an issue or that a person has a fair chance to put their case.

60 The independent examiner decides: If an exploratory meeting is necessary If the qualifying body needs to respond to consultation responses If clarification is needed on documents or evidence submitted If the examination can be undertaken using written submissions alone What the likely timetable for the examination will be Whether to undertake any site visit(s)

61 Examiner's Remit (TCPA 1990 Schd 4B, para. 8(6) as applied to NPs by s.38c of the PCPA 2004) The Examiner can only consider the specified matters i.e. (1) Whether the draft plan meets the basic conditions (2) Whether it complies with ss. 38A and 38B of the PCPA 2004 (3) Whether the area for any referendum should be extended beyond any neighbourhood area

62 STEP 8: ENSURE THAT THE LPA S REPOSNE TO THE EXAMINER S RECOMMENDATIONS IS LAWFUL Successful challenges to NDPs have been more the exception than the norm (for approach see e.g. R (oao DLA Delivery Ltd.) v Lewes DC [2017] EWCA Civ 58 and Crownhall Estates v Chichester DC [2016] EWHC 73 (Admin) In Maynard v Chiltern DC [2015] EWHC 3817 (Admin) the claimant owned and occupied a property which included a nightclub and wished to develop the site for housing The Draft NDP listed it as a community facility The developer made representations asking for this designation to be removed The Examiner agreed but the LPA chose not to accept that recommendation, taking the view that it was based on a misunderstanding of development plan policy and breached the basic conditions in not being in general conformity with policies in the the local authority s development plan

63 Maynard v Chiltern DC [2015] EWHC 3817 (Admin) The Judgment The developer had argued that the nature and availability of the service provided did not represent a valuable facility for the local community, which was the representation which the examiner accepted. Therefore, the local authority's decision to reject the examiner's recommendation on the basis that he had misinterpreted the policy in the development plan as excluding privately owned, or privately run facilities was itself a material legal misdirection (paras ). The authority had not considered the developer s argument Paragraph 8(2)(e) of Sch. 4B only required the local authority to consider whether the draft NDP as a whole was in general conformity with the adopted development plan as a whole. It was not concerned with whether there was a tension between one policy of the NDP and one element of the local plan.

64 STEP 9: GET THE PLAN THROUGH THE REFERENDUM AND HOLD YOUR BREATH! If the Plan is considered to comply with the basic conditions and all requirements para. 8 of Schd 4B it must be put to a referendum (and two if it relates to a business area). It only requires the support of a simple majority, whatever the turnout. The Plan can the be made and any legal challenge has to be made within 6 weeks of that. If you have complied with the above principles, the risks of a successful challenge should be very slim. If however you push the boundaries in terms of what is supported by the evidence, the problems could arise as in R (oao Stonegate Homes Ltd v Horesham DC [2016] EWHC 2512 (Admin)

65 STEP 10: WHAT HAPPENS THEN Get ready to ensure that the LPA properly takes the plan s provisions into account when determining planning applications

66 Using a Neighbourhood Plan to Resist Proposed Development Kate Olley Landmark Chambers 30 th April 2018

67 Implications of the Question NIMBYs? NPPF vs the Localism Agenda Warping of localism agenda by the well-off and well-housed? The Turley study

68 Embedded materiality NDPs are a part of the development plan- s38 of PCAP 2004 NPPF para 198- Where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted. Position of NPs supported by Dec 2016 WMS

69 Political support Irwin Mitchell study. Secretary of State giving more weight than his Inspectors? But Qs arise in relation to the weight to be given to NDPs in the context of the need for housing taking on increasing public importance

70 Keith Langmead v SSCLG [2017] EWHC homes south of Ford Lane, Yapton, West Sussex SoS refused permission (Sept 2016), disagreeing with the Inspector, giving substantial weight to the NP policy opposing development outside the built-up boundary except in specified circumstances Statutory challenge- decision failed to TIA NP Examiner s reservations about the NP Lang J held SoS was entitled to conclude in the exercise of his planning judgment that the NP should be upheld as an effective means to shape and direct development in its area, and to place very substantial negative weight on the conflict between the proposal and the relevant NP policy.

71 Burndell Road, Yapton PP granted by SoS for 108 homes (Oct 2017) SoS noted a persistent undersupply of housing locally (max 1.9 yrs) The OAN, when examined as part of the Local Plan, would be substantially higher than the figure upon which the Yapton NP was based Relevant NP policy therefore found to be out of date and carried only limited weight, in contrast to the Ford Lane appeal decision NP conflict carried only limited weight due to the severe housing shortage in light of the substantially revised OAN