Neighbourhood Planning

Neighbourhood Planning NEIGHBOURHOOD PLANNING EVOLVES GARY GRANT BARRISTER KINGS CHAMBERS 1. The Localism Act 2011 2. Parish /Town Council /Neighbourhood Forum 3. Community Consultation 4. Engagement with the LPA 5. Examination 6. Referendum 7. Make the NP Big Society Early skirmishes 1. Localism Agenda 2. Sitting alongside:- Plan Making NPPF OAN Five year land supply R (on the application of Gladman Developments Ltd ) v Aylesbury Vale DC [2014] EWHC 4323 (Admin). R (on the application of Larkfleet Homes Ltd ) v Rutland CC [2014] EWHC 4995 (Admin) [2015] EWCA Civ 597 Crane v SSCLG [2015] EWHC 425 (Admin) Woodcock v SSCLG [2015] EWHC 1173 (Admin) 1

Where were we Evolution Gov t important component of localism agenda. Community perspective - Clearly varies but a silver bullet. Court s perspective room to find place support. Inspector s perspective cf SoS on weight R (Crownhall Estates Ltd ) v Chichester DC v Loxwood Parish Council [2016] EWHC 73 (Admin) Holgate J identifies key principles which distinguish the preparation of a NP from a LP including the key understanding that the test of soundness does not apply see 29 Crownhall Estates (cont) Muscular Localism Holgate J reserved his position on whether S Bucks ( duty to give reasons ) applied to the obligations of an examiner in NP context [ 57 ] R ( on the application of RLT Built Environment Ltd v The Cornwall Council v St Ives Town Council [ 2016 ] EWHC 2817 (Admin). Contention that the St Ives NDP policy to limit 2 nd home ownership in the St Ives area, incompatible with art. 8 of ECHR and contrary to requirement for SEA. 2

Muscular Localism Muscular Localism Policy H2 of the draft St Ives NDP required new open market housing to have a restriction to ensure occupancy as a principal residence. Hickinbottom J accepted that the policy objective of reducing the proportion of dwellings in the area not used as principal residences was a legitimate policy objective. To simply increase housing generally would not achieve the same objective grounded in the social and economic sustainability of the local area. Consequently there was no breach of the SEA Directive Moreover, the principle concerns of the NDP should be the delivery of the housing target figure in the Cornwall LP It was conceded that Art 8 did not apply to a home that was yet to be built but argued that the future operation of the restriction would impact where for example work took a family temporarily away. The Court rejected the challenge to the NDP policy on a number of bases including the presence of checks and balances to the circumstances when such rights were truly engaged. Muscular Localism General Conformity The court accepted that the policy was in pursuit of a legitimate public interest, namely the interests of the the economic well-being of the country, and for the protection of the rights and freedoms of others R (on the application of DLA Delivery Ltd ) v Newick Parish Council [2017] EWCA Civ 58 Lindblom LJ confirms reasoning in a number of 1 st instance decisions. Fundamentally there is no need for a NP to be held back until an up to date LP is in place 3

General conformity General conformity If there are relevant strategic policies contained in the adopted local plan the NP must not be otherwise that in general conformity with those strategic policies. Whether there is such sufficient conformity will be a matter of fact and planning judgment DLA also considered an argument that the NP had breached the Habitat Regs in that there was no evidential basis for the conclusion that the mitigation would be in place [ SANGS ] to support the sites being considered by the Examiner. This was rejected on the basis that it was a planning judgment, that the requisite SANGs would be provided made at plan making stage not in the making of the decision on an application for planning permission. Lindblom LJ did accept a departure from the standard of reasons to be expected of an examiner in a NP process. Examiners reasons Scrutiny Lang J in R ( on the application of, Bewlay Homes PLC ) v Farnham TC [2017] EWHC 1776 (Admin) - 58 In conclusion, therefore, I consider that an Examiner examining a neighbourhood plan is undertaking a function which is narrowly prescribed by statute and he is subject to a limited statutory duty to give reasons. It is distinguishable from the function of an Inspector determining a planning appeal, where the duty to give reasons is expressed in general terms. Therefore the South Bucks principles have to be modified to reflect these differences. R ( on the application of Legard) v The Royal Borough of Kensington and Chelsea [2018] EWHC 32 (Admin) The LPA make the order confirming a NP however, the LPA is obliged to give advice or assistance to qualifying bodies as appropriate to qualifying bodies to facilitate the making of the NDP ( see 117 ). The challenge focused on the close and detailed lobbying and communications of the promoter of the NDP in the context of a dispute over the future of a tract of land either as Local Green Space or in residential use. 4

Dove J:- (1)Agreed with Lang J on reasons:- I agree with Lang J's analysis. In testing whether or not the Examiners reasons are legally adequate it is important to focus upon such reasons as are necessary to explain the report's recommendations, and to bear in mind that in respect of the main findings of the report the duty is simply to provide a summary. In respect of the reasons provided they will of course have to be intelligible and explain why the recommendation has been reached, but they do not have to refer to every matter raised in the context of the debate, solely the principal controversial issues. 2) Dove J on communication between Planning Officers and promoters of NP in the context of allegations of apparent bias and lack of fairness:- 142 In seeking to form a view in relation to the question of whether or not the claimant has established that the defendant was apparently biased towards the second interested party, in my view it is necessary to have regard to the following features which would be part of the context known to the well informed and fair minded observer. Firstly, so far as the defendant's officers are concerned, they are public officials who have a responsibility to seek to take account of legitimately expressed interests raised with them by the members of the public who they are employed to serve. It is part and parcel of their role to have a listening ear to representations that are made to them. Of course, from time to time there will be a necessity to turn representations away: they may be representations which are illegal or vexatious. There also may be the need from time to time, akin to the observations of the Court of Appeal in Broadview Energy Developments in respect of the conduct of the Secretary of State, to politely observe that there is no purpose in making further repetitious representations. Nonetheless, in the context of modern public administration there will be an expectation that Local Government officers will engage with representations which are made to them by all members of the public, since failing to do so may give rise to justifiable complaint. (3) Dove J on the particular role of Officers in the NP process:- 144 Thirdly, the well informed and fair minded observer would have an appreciation of the obligation of the defendant under paragraph 3(1) of Schedule 4B of the 1990 Act to "give such advice or assistance to [the second interested party] as, in all the circumstances, they consider appropriate for the purpose of, or in connection with, facilitating the making of proposals for [neighbourhood plans]". Thus, the narrative of events, and in particular the defendant s involvement in that narrative, would be understood by the well informed and fair minded observer as taking place against the backdrop of the requirement of the defendant to provide advice and assistance to the second interested party in order to facilitate the making of the Neighbourhood Plan. Cont. The duty is expressed in relatively broad terms, and in my view was undoubtedly included within the statutory provisions to reflect the fact that, firstly, the local planning authority would be well equipped with experienced professional officers to provide a range of expertise to support a qualifying body in the making of its Neighbourhood Plan and, secondly, to reflect the fact that many qualifying bodies would by stark contrast not have the resources or expertise available to them to produce a Neighbourhood Plan unassisted. That is not to say that there is anything in paragraph 3(1) which requires the local planning authority to support the proposals of a Neighbourhood Plan come what may, or whatever may be their views of the merits of the Neighbourhood Plan. It is obvious that the local planning authority has important tasks within the statutory framework in terms of appraising the merits of the Neighbourhood Plan against the specific tests which are set out in the legislation. The duty to provide "advice or assistance" does not require uncritical and unthinking support. What it does require, however, is undoubtedly relatively close engagement with the qualifying body to facilitate the making of the Neighbourhood Plan 5

WMS on NP (4) Dove J on leaving a controversial issue to the Examiner to assess:- 151.The question of the volte face relied upon by the claimant is dealt with in greater detail below. However, in relation to the claimant's submission that it was an aspect of apparent bias that the officers of the defendant did not express their genuine professional view of the proposal to designate the site LGS to the examination, it is important in my view to bear in mind that the position of the officers at the examination followed on from the receipt by the defendant's Full Council meeting of the petition. The response to that petition which came from the officer's report on the petition and was endorsed by members, was that it would be for the examiner to resolve the question of whether or not the designation was justified. That was, in the light of the arguments which had been presented both for and against designation, a reasonable approach to take bearing in mind the process of independent scrutiny which the Neighbourhood Plan had to undergo. Written Ministerial Statement 12 12 2016 Associated change to NPPG [PPG] 10 8 2017 The crux of WMS :- 5. 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; the neighbourhood plan allocates sites for housing; and the local planning authority can demonstrate a three-year supply of deliverable housing sites. WMS and PPG on NP WMS and PPG on NP PPG : "A written ministerial statement on 12 December 2016 set out how planning applications and appeals should be determined in circumstances where the local planning authority cannot demonstrate a 5-year supply of housing, but there is a neighbourhood plan in force where all of the following criteria apply: the written ministerial statement is less than 2 years old, or the neighbourhood plan been part of the development plan for 2 years or less; the neighbourhood plan allocates sites for housing; and the local planning authority can demonstrate a 3-year supply of deliverable housing sites against its 5 year housing requirement. The written ministerial statement stated that in such circumstances, relevant policies for the supply of housing in the neighbourhood plan should not be deemed to be 'out-of-date' under paragraph 49 of the National Planning Policy Framework... PPG [cont.] :- Subsequently, the Supreme Court in Suffolk Coastal District Council v Hopkins Homes Ltd and SSCLG ; Richborough Estates Partnership LLP and SSCLG v Cheshire East Borough Council [2017] UKSC 37 has explained that it is not necessary to determine whether a policy is a "relevant policy for the supply of housing" in paragraph 49 of the National Planning Policy Framework, and deem it "out-of-date" in order to determine the weight that is attached to that policy. Weight is a matter of planning judgment for the decision maker. In circumstances where the development plan is absent, silent or relevant policies are out of date, paragraph 14 of the Framework states that permission should be granted unless the adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole, or restrictive policies in the Framework indicate development should be restricted... 6

Richborough Dove J 2018 Richborough Richborough Estates Ltd ( and others) v SSCLG [2018] EWHC 33 (Admin) - Dove J :- 1. Derives support from reasoning of CA in W Berks [2016] 1 WLR 3923 at 34-37 which leaves a broad discretion to the SoS in making planning policy subject to limits to making policy which would countermand or frustrate the effective operation of section 38(6) or section 70(2) [ 31 ] ; 2. In fact the matters alleged to have been left out of account had not shown by disclosure so to have been ; 3. At the time the WMS was made it faithfully reflected the law as it stood at the time [ Hopkins CA ]. In light of Hopkins SC the issue became whether the WMS and PPG remained capable of sensible interpretation. Dove J held:- 40 Reading the WMS together with the NPPG in my view the policy is clear. The NPPG sets out the change in understanding from when the WMS was published affected by the Supreme Court decision in Hopkins Homes. Whereas the WMS was drafted at a time when the "wider" interpretation prevailed, after the Supreme Court decision it was no longer "necessary to determine whether a policy is a 'relevant policy for the supply of housing' in paragraph 49...and deem it 'out-of-date' in order to determine the weight that is attached to that policy". This text properly reflects the judgment of Lord Carnwath in paragraphs 56 to 59 of Hopkins Homes. It overtakes the approach taken by the WMS in paragraph 4, which was, as set out above framed against the decision of the Court of Appeal. So how is the policy to be interpreted and how does it apply? Richborough cont. Richborough cont. Cont. 41 It is sensible to start with an understanding of when the policy applies. In my view the criteria from paragraph 5 of the WMS, reiterated (but tweaked) in the NPPG are clear. There are three criteria and the first two were essentially uncontroversial in the case, namely that the WMS is less than two years old or the NDP has been made for two years or less, and that the NDP allocates sites for housing. There was debate about the third criterion, which forms the substance of Ground 3, namely what is meant by a three-year supply of housing. Again, I have no difficulty concluding that this means a three-year supply in terms of the exercise for assessing a five-year supply of housing required by paragraphs 47-49 of the Framework. Dove J :- 46...Under the WMS alone, if the five-year supply calculation demonstrated more than three years (but less than five years) then policies for the supply of housing were not to be deemed out-of-date as a consequence of the application of the WMS, if its criteria were met. Following the Supreme Court's decision, and applying the consequential addition to the NPPG along with the WMS, if the five-year supply calculation demonstrates a more than three but less than five-year supply (and the other criteria apply) then paragraph 49 requires the planning balance to be struck using the tilted balance from paragraph 14, and in striking the balance significant weight is to be given to the NDP. The requirements of the policy are in my view clear and do not contradict, but augment, the requirements of national policy for those cases where the criteria of the WMS and NPPG are not satisfied. 7

The Neighbourhood Planning Act 2017 Neighbourhood Planning Act 2017 On the statute book as of 27 th April 2017 Sections 1-7 concerned with Neighbourhood Planning Sections 1-5 in force. Section 1 makes it a duty to have regard to postexamination neighbourhood development plan. Amends section 70(2) of TCPA 1990 Clarifies when the duty applies at any point after an examiner had recommended that a LPA should make the draft plan with modifications. Neighbourhood Planning Act 2017 Section 1(3D) of the Act indicates the circumstances in which such a plan is no longer considered to be a Post examination draft NDP either because it has or has not progressed. Neighbourhood Planning Act 2017 Section 3 Status of approved neighbourhood development plan In section 38 of the Planning and Compulsory Purchase Act 2004 (development plan) after subsection (3) insert (3A) For the purposes of any area in England (but subject to subsection (3B)) a neighbourhood development plan which relates to that area also forms part of the development plan for that area if (a) section 38A(4)(a) (approval by referendum) applies in relation to the neighbourhood development plan, but (b) the local planning authority to whom the proposal for the making of the plan has been made have not made the plan. (3B) The neighbourhood development plan ceases to form part of the development plan if the local planning authority decide under section 38A(6) not to make the plan 8

Neighbourhood Planning Act 2017 2017 Act and PPG Section 4 confers powers upon the LPA to make non material amendments to a NDO or NDP. Section 5 deals with changes to neighbourhood areas. Recent changes to PPG Relevant to s 5 NPA 2017 41-037 If the community seek to amend a designated area as part of the process of updating a NP that is in force they should ensure that the NP area application considers any adverse consequences on the existing NP which would remain in force for any area excluded from the amended boundary. If any such adverse consequences are identified, qualifying bodies should set out appropriate mitigation measures in the basic conditions statement. 2017 Act and PPG 41-085 Relevant to s 4 NPA 2017 initial view from QB and LPA When considering a proposal for the modification of a NP that is already in force, an independent examiner must first decide whether the proposed modifications are so significant or substantial as to change the nature of the plan. QB to decide whether to proceed once decided by IE examples given in 086. 2017 Act and PPG PPG identifies the introduction of the Neighbourhood Planning (General) and Development Management Procedure (Amendment) Regulations 2017/1243 In force from 31 st January 2018 Regulates the process of modification as above. 9

Conclusions 1. Here to stay 2. Government signalling relevance and weight; 3. Maturing process; 4. Section 38(5) 2004 Act - the next frontier? 5. Amendments to NPPF. 6. Q & A? 10