The concept of a neighbourhood development plan (“NDP”) was first introduced by the Localism Act 2011 (“the 2011 Act”). In particular, the 2011 Act inserted into the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) sections 38A to 38C.
NDPs can be proposed by town or parish councils or by designated neighbourhood forums, and they can lead to general planning policies being established for the development and use of land in a neighbourhood. They do not take effect unless there is a majority of support in a referendum of the neighbourhood, and they must meet the following conditions: (1) have regard to national planning policy; (2) be in general conformity with strategic policies in the development plan for the local area; and (3) be compatible with EU obligations and human rights requirements.
In R (on the application of Larkfleet Homes Ltd) v Rutland County Council [2015] EWCA Civ 597; [2105] PLSCS 183, the appellant had applied unsuccessfully at first instance to quash a decision by the local planning authority (“LPA”) to put a NDP to a referendum. The appellant, a residential developer, owned a site in the neighbourhood that it hoped to develop. While the draft NDP allocated three sites in the neighbourhood for housing, these did not include that owned by the appellant.
The appellant’s principal ground was that while the language of sections 38A and 38B of the 2004 Act was sufficiently wide to encompass site allocation policies within NDPs, the statutory power to make NDPs containing site allocation policies was cut down by other provisions. It cited section 17(7)(za) of the 2004 Act and regulation 5 of the Town and Country Planning (Local Development) (England) Regulations 2004 made thereunder, contending that their effect was to require site allocation polices to be contained within documents prepared as local development documents.
The Court of Appeal dismissed the appellant’s appeal, upholding the judgment at first instance. The appeal judges held that section 17 of the 2004 Act – to be found within Part 2 of the 2004 Act – had nothing to do with NDPs, the provisions relating to which are to be found in Part 3 of the Act. The former provisions were to do with documents to be prepared as local development documents by a LPA. Against that, NDPs are proposed by town and parish councils and designated neighbourhood forums and then made by LPAs. They are governed by a separate statutory regime within the 2004 Act.
They added that it would be very surprising if site allocation polices could not be included in NDPs, since the location of housing was likely to be the single most important planning issue for a neighbourhood.
John Martin
