Town and country planning – Neighbourhood development plan – Green belt – Appellant developer appealing against refusal of judicial review of respondent local planning authority’s decision to approve draft neighbourhood development plan – Whether plan containing lawful policies managing development of parcels of land designated as local green spaces – Appeal allowed
The appellant developer purchased a number of sites in the village of Norton St Philip, Somerset for potential development and promoted them for housing allocation in the ongoing examination into the emerging local development plan. A draft neighbourhood development plan had been prepared by the interested party parish council in consultation with the local community. It included a local green space (LGS) policy, proposing ten sites to be designated as LGSs.
Two of the sites were owned by the appellant and had been earmarked for development which would not be inappropriate in the green belt. Under policy 5 of the plan, development on LGSs would only be permitted if it enhanced the original use and reasons for the designation. An experienced independent examiner found that the designated green spaces were demonstrably special and held a particular local significance. She concluded that, subject to recommended modifications, the plan met the statutory requirements, including those relating to LGSs. The respondent local authority accepted the examiner’s recommendations and resolved that the modified plan should proceed to a referendum. The appellant’s application for judicial review of that decision was dismissed: [2020] EWHC 1146 (Admin).
The appellant appealed contending that: (i) policy 5 of the plan was inconsistent with national green belt policy and failed to meet the basic condition in paragraph 8(2)(a) of schedule 4B to the Town and Country Planning Act 1990; (ii) the designation of the LGSs was unlawful because the respondent had failed to consider whether they were capable of enduring beyond the plan period, as required by paragraph 99 of the National Planning Policy Framework (NPPF); and (iii) the plan was not in general conformity with strategic development policies in the local plan and failed to meet the basic condition in paragraph 8(2)(e) of schedule 4B.
Held: The appeal was allowed.
(1) It was a basic condition that a neighbourhood development plan had to have regard to national policies and advice contained in guidance issued by the secretary of state. A statutory requirement of that kind required a decision maker not only to take national policies into account but also to observe them and depart from them only if there were clear reasons for doing so: R (on the application of Khatun) v Newham London Borough Council [2004] EWCA Civ 55; [2004] PLSCS 73 applied.
(2) When paragraph 101 of the NPPF said policies for managing development within an LGS should be consistent with those for green belts, it meant that national planning policy provided that policies for managing land within an LGS should be substantially the same as policies for managing development within the green belt.
Policy 5 was more restrictive than green belt policy and was not flexible. Therefore, it was not consistent with national green belt policy and did not comply with paragraph 101 of the NPPF. However, that did not automatically mean that the policy was unlawful as the NPPF was a material consideration but it was not the law. The statute required no more than that regard should be had to it. But if a neighbourhood plan departed from the NPPF it had to be a reasoned departure and no reasons for the departure were given in the present case. On the assumption that the parcels of land were lawfully designated as LGSs, policy 5 did not satisfy the basic condition in paragraph 8(2)(a) of schedule 4B to the 1990 Act and was unlawful. The appeal would be allowed on that ground alone.
(3) There was no reason why the court should not respect the expertise of the examiner, who was independent of both the parish council and the respondent, with over 30 years’ experience as a chartered town planner, including the examination of neighbourhood plans, and start at least from the presumption that she would have understood the policy framework correctly: Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37; [2017] PLSCS 27; [2017] EGLR 27 applied.
Although that presumption was rebuttable and did not permit the court to ignore legal errors on the examiner’s part, there had been no such error in the present case. The policy requirement of paragraph 99 was no more than that the LGS should be capable of enduring beyond the plan period not that it should inevitably do so.
A designated LGS might not be capable of enduring beyond the plan period if the need for new housing required it to be given up for development before the end of the plan period. However, if pressure for development could be satisfied elsewhere within the neighbourhood during the plan period, it was likely that the LSG would be at least capable of enduring beyond that period. Given that the examiner had found that there was a suitable supply of land elsewhere, the judge was justified in concluding that each of the areas was lawfully designated as an LGS.
(4) One aspect of the basic conditions was that a neighbourhood development plan had to be in general conformity with the strategic policies contained in the development plan. Whether that requirement was satisfied was a matter of planning judgment. The exercise of that judgment was predicated on the correct interpretation of the strategic policies in the development plan which was a question of law ultimately for the court to resolve. Although the assumptions made in the plan about certain housing requirements were subsequently found to be partially incorrect, it did not undermine the plan to such an extent that it rendered the respondent’s decision on the plan unlawful. The specific proposals for housing in the plan were unaffected and the judge was entitled to conclude that the initial misinterpretation was not material: R (on the application of DLA Delivery Ltd) v Lewes District Council [2017] EWCA Civ 58; [2017] PLSCS 35; [2017] PTSR 949 followed.
Richard Ground QC and Ben Du Feu (instructed by Harrison Grant) appeared for the appellant; Hashi Mohamed (instructed by Law and Governance Mendip District Council) appeared for the respondent; The interested party did not appear and was not represented.
Eileen O’Grady, barrister
