It’s fair to say that neighbourhood plans (‘NP’) have been a hot topic across the industry over the past 18 months or so. On 26 August 2015 ‘Planning Resource’ reported that 57 neighbourhood plans have been adopted in England with 1450 applications having been made to local planning authorities by community bodies who wish to take on neighbourhood planning powers.8

The increase in neighbourhood plan  activity  has led to a concurrent rise in High Court challenges to neighbourhood plans or decisions which have taken emerging NPs into account as a material consideration. This article looks at some of the broad issues which have been raised before the High Court and Court of Appeal and the jurisprudence which has developed thus far.

Can a neighbourhood plan be ‘made’ prior to the adoption of a local plan?

The making of NPs tends to be most controversial when they come forward ahead of an adopted local plan (‘LP’) as a few of the cases have demonstrated.

In the case of R(oao) Gladman Developments Ltd) v Aylesbury Vale DC [2014] EWHC 4323 (Admin) the Claimant brought a challenge to the Winslow Neighbourhood Plan in Buckinghamshire. The NP contained a policy which established a settlement boundary and provided that development outside of that boundary would only be permitted in exceptional circumstances. The Claimant had interests in three sites outside of the settlement boundary.

The Winslow NP came forward in advance of a local plan setting out strategic policies for meeting the objectively assessed housing needs (‘OAN’) for the district. The main issue in the case was whether it was permissible for the NP to come forward before the LP. Given the fact that a significant number of local authorities remain without an up to date local plan the issue is of relevance across the country.

Paragraph 8(1)(a) of Schedule 4B to the Planning and Compulsory Purchase Act 2004 states that when examining the plan the examiner must consider whether the NP meets the basic conditions. Among the basic conditions in paragraph 8(2) is the requirement that making the NP would be ‘in general conformity with the strategic policies contained in the development plan for the area of the authority’. The requirement for NPs to be in general conformity with an LP is also set out at paragraph 184 of the Framework. The Claimant argued that for an NP to decide housing need and allocate housing sites would be contrary to these legislative and policy provisions. The Claimant also argued that the Framework presupposes that housing policies would be based upon an OAN and NP policies not based upon an OAN would therefore be contrary to the Framework.

Mr Justice Lewis rejected the Claimant’s arguments. In doing so he stated:

’58. In my judgement, a neighbourhood development plan may include policies dealing with the use and development of land for housing, including policies dealing with the location of a proposed number of new dwellings, even where there is at present no development plan document setting out strategic policies for housing.’

The main reason for reaching this conclusion was there was no legislative or policy provision providing that an NP cannot include policies dealing with the development of land for housing in the absence of a development plan document which contains strategic policies on housing issues.9

The reasoning in Gladman has recently been followed by the High Court in the case of R(oao DLA Delivery Ltd) v Lewes DC [2015] EWHC 2311 (Admin)10. In his judgement, Foskett J took the matter a stage further and analysed how a site which sits in a local authority area lacking an LP but has ‘general planning merit’ and meets the requirements of the Framework but not an NP might be unlocked for development. He stated:

‘138. In the broadest sense, the fact that in a particular area there is no up-to-date Local Plan with which a made” NDP can be “in general conformity” (because the latter has been made in advance of the former) may, as it seems to me, arguably be a material consideration in determining a planning application which conflicts with the made NDP. The weight to be attached to it will, of course, be a matter of planning judgment when the issue arises and will doubtless depend, at least in part, on the likely prospect of the emerging Local Plan being adopted and the extent to which there is a divergence between the made NDP and the emerging Local Plan. But this, in my view, offers some, albeit perhaps limited, prospect of unlocking for development a  site  that has general planning merit and otherwise meets the requirements of the NPPF, but which is currently not allocated for housing within the NDP.’

That paragraph may provide some limited succour to those with development interests on sites which conflict with NP policies.

Can neighbourhood plans allocate sites for development?

The next pressing issue  which  has  been  resolved by the Courts is whether an NP can allocate sites for development or whether that is solely the role of Local Development  Documents.

The Court of Appeal has thus far only given one judgement on a challenge to a neighbourhood plan. The case of R(oao Larkfleet Homes Ltd) v Rutland CC [2015] EWCA Civ 597 concerned the Uppingham Neighbourhood Plan. The main issue for the Court was whether it was lawful for a neighbourhood plan to include site allocation policies within it. The Uppingham NP allocated three sites for housing development but did not include the Claimant’s site among them. The appellants argued that the effect of section 17 Planning and Compulsory Purchase Act 2004 was that site allocation policies could only be contained in a document adopted under that section (i.e. a Local Development Document).

The Court of Appeal agreed with the judge below. It stated that section 17 ‘has nothing to do with neighbourhood development plans’ (para.19) which are governed by a separate statutory regime in a different part of the 2004 Act. The Court stated:

’21. The provisions relating specifically to neighbourhood development plans are plainly wide enough, as Mr Elvin accepted, to allow site allocation policies to be included in such plans. It would indeed be very surprising if site allocation policies could not be included in them, since the location of housing likely to be the single most important planning issue for  a  neighbourhood….In short, the statutory regime governing neighbourhood development plans clearly allows such plans to include site allocation policies.’

The answer to the question is therefore an unequivocal ‘yes’ from the Court of Appeal. This is likely to focus the attention of developers towards co-operation with those preparing NPs in order to encourage the inclusion of their sites within the NPs.

What is the role of the examiner and the standard of review?

Many practitioners have been concerned about the ‘light touch’ nature of the NP examiner’s role. This was picked up in the early challenge of BDW Trading v Cheshire West and Chester BC [2014] EWHC 1470 (Admin) (judgement 9 May 2014) where Supperstone J highlighted the ‘limited role of the Examiner which was to assess whether the Basic Conditions had been met’ [81]. This was stated to be in contrast to the ‘more investigative scrutiny of a local plan Inspector charged with determining whether the Local Plan as a whole is or is not “sound”.’ [83]

In the most recent judgement of the High Court (DLA Delivery Ltd supra) an argument was raised by the Claimants that the choice of examiner to the Newick NP lead to an appearance of bias. The ground was an attack on the system under which inspectors are chosen and rested on the fact that there was a strong incentive for an NP steering group to choose an examiner with a proven track record for approving NPs.

Mr Justice Foskett stated that an attack on the ‘system’ could not be advanced without the Secretary of State being a party to the proceedings. However, he went out to say that in any event the points were unarguable. In doing so he stated:

‘I cannot see how “the system” could be assisted by the involvement of examiners who, without discrimination, simply approve draft NDPs. Their role, of  course,  is only to decide whether the basic conditions have been met … and to that extent, the role is comparatively superficial…, but the process of judicial review (with all the delays to which it can give rise) is available to quash an NDP that has simply been “nodded through” by an examiner without addressing the issues properly and conscientiously. Such a process does not serve a local community well and, for my part, I am unable to see how a fair-minded observer, applying his or her mind to the issue with that factor in play, would see the fact that the choice of examiner is left to the LPA (in consultation with the Parish Council) as producing an unfair or non- independent result. It is in the interests of the local community to see its NDP in place without the risk of successful legal challenge.’ [148]

The judge went on to state that merely because a particular examiner has approved all (or most) of the draft NPs they have examined is not of any relevance. An examiner is likely to be presented with a prepared draft which has undergone a lengthy consultation process and therefore:

‘[I]n that situation there is a good prospect that, even if not meeting entirely with the approval of the examiner (again, as occurred in this case), it is a document that will require only some modest modifications before it is capable of approval. It is not, therefore, difficult to see why many draft NDPs are approved, but equally the evidence indicates that some are not.’ [149]

When should a neighbourhood plan be the subject of a strategic environmental assessment and what should it include?

A number of the challenges to NPs have included a ground criticising the lack of a strategic environmental assessment (‘SEA’).

In Larkfleet Homes the Local Authority had issued a screening report which stated that an SEA was not required as the NP was not likely to have significant environmental effects. In that case the High Court (with whom the Court of Appeal agreed) stated that the screening report was ‘badly expressed’. However the Court of Appeal stressed that ‘documents of this kind are to be read as a whole and with a degree of benevolence.’ Therefore, the High Court was correct to conclude that the report had considered both the positive and negative environmental effects of the NP and that the screening report was lawful.

Other challenges have criticised the contents of SEAs. The Tattenhall Neighbourhood Plan which was the subject of the BDW Trading case was submitted for examination together with an SEA. The SEA was criticised by the claimants for not considering the effect of constraining delivery of housing in the district or whether an alternative policy approach would have been more sustainable. The High Court highlighted that article 5(2) of the SEA Directive:

‘requires the “environmental report” to include information which “may reasonably be required” taking into account, inter alia, the content and level of detail of the plan, the stage in the decision-making process, and the extent to which certain matters are more appropriately assessed at different levels in the decision-making process…’ [73]

The High Court confirmed that whether or not an NP is compatible with EU obligations was a matter of planning judgement for the examiner. The court went on to conclude that no other options testing was reasonably required and therefore the Claimant’s challenge on this ground failed.

Similar conclusions were reached by the High Court in Gladman v Aylesbury where the court stated:

‘The claimant may be critical of the level of detail and may wish for more detail… The examiner was entitled to conclude, however, that this Neighbourhood Plan, dealing with the allocation of 455 new houses, did include a sufficient level of detail explaining that the allocation was based on the current form of the town whereas an alternative strategy, based on expansion in other directions, would have greater environmental impact.’ (per Lewis J [92])

These conclusions are unsurprising and follow the significant body of case law dealing with SEAs in relation to other development plan documents.

Summary and where next?

The questions posed above have been answered by the High Court and Court of Appeal in a manner which is disappointing to those seeking to challenge the making of NPs. The decisions highlight the wide ambit which NPs may have and also the lack of ‘rigour’ provided by the examination process. No  doubt these decisions will encourage those with development interests to work with any relevant qualifying bodies in an attempt to ensure that their proposal finds favour with any emerging NP.

There remain a number of challenges in the pipeline which practitioners may wish to follow. These include the appeal of the decision in the DLA Delivery case. Permission has been granted by the High Court on one ground however the appellants have requested permission from the Court of Appeal to appeal on all other grounds.

Further, at present, the High Court is due to hear the case of R(oao Crownhall Estates Limited) v Chichester District Council on 18 November. Richard Harwood QC and Daniel Stedman-Jones of 39 Essex Chambers represent the Claimant.