Town and country planning – Development plan – Respondent local authority proceeding to referendum on neighbourhood development plan (NDP) allocating sites for residential development – Appellant developer opposing NDP – Whether planning legislation permitting inclusion of site allocation policies in NDPs – Whether contrary to provisions of section 17(7)(za) of Planning and Compulsory Purchase Act 2004 and regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012 concerning local development documents – Appeal dismissed
The appellant developer had a commercial interest in land to the north-west of Uppingham, in Rutland, which it hoped to develop for housing. In 2011, the respondent local planning authority adopted a core strategy for Rutland in which Uppingham was identified as a sustainable location for new development. In early versions of a development plan document (DPD) on site allocations and policies, the respondents identified the appellant’s site for potential development. However, the final version of the DPD, submitted to the secretary of state for public examination in 2013, omitted any provision for development in the Uppingham area. That was because the interested party had, by then, put in motion the process for making a neighbourhood development plan (NDP) for that area, pursuant to section 38A of the Planning and Compulsory Purchase Act 2004 as amended by the Localism Act 2011. The draft NDP contained a policy allocating three sites at Uppingham for housing development, none of which was the appellant’s site.
Following consultation on the draft NDP and consideration by an independent examiner, the respondents decided that the NDP should proceed to a referendum. The referendum took place in July 2014 and produced a strong majority vote in favour of the NDP.
The appellant brought judicial review proceedings to challenge the respondents’ decision to put the NDP to a referendum. It contended that section 17(7)(za) of the 2004 Act, and regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012 made thereunder, did not permit particular sites to be allocated for development in NDPs; instead, documents containing such policies had to be prepared as “local development documents” and go through the formal process applicable to the adoption of such documents. It also argued that the respondents had erred in deciding, in a screening report, that it was unnecessary to carry out a strategic environmental assessment (SEA) in respect of the NDP under the Environmental Assessment of Plans and Programmes Regulations 2004. The claim was dismissed in the court below: see [2014] EWHC 4095 (Admin); [2014] PLSCS 353. The appellant appealed.
Held: The appeal was dismissed.
(1) Section 17 of the 2004 Act had nothing to do with neighbourhood development plans. It fell within a part of the 2004 Act dealing with local development and the functions of local planning authorities, and it was concerned with local development documents setting out the policies of the local planning authority relating to the development and use of land in their area. The power in section 17(7)(za) to make regulations prescribing “which descriptions of documents are, or if prepared are, to be prepared as local development documents” related to what a local planning authority could or could not do as regards their planning policies, in particular what they had to include in local development documents. Its purpose was to limit reliance on supplementary planning guidance which had not gone through the full formal process. The structure of regulation 5 of the 2012 Regulations reflected the wording of section 17(7)(za) of the 2004 Act, so far as it dealt with documents which “are to be prepared” as local development documents. Regulation therefore related to documents prepared, or to be prepared, by a local planning authority, even though express reference to a local planning authority was made only in regulation 5(1).
Neighbourhood development plans, by contrast, were not prepared by a local planning authority and the statute did not even use the term “prepared” in relation to them: they were “proposed” by a qualifying body under section 38A and were “made” by a local planning authority on completion of the process so initiated. More importantly, neighbourhood development plans were governed by a separate statutory regime. The relevant statutory provisions, sections 38A to 38C, were inserted in a different part of the 2004 Act from those dealing with local development documents, and the relevant definition of “development plan” in section 38(3) drew a clear distinction between DPDs and NDPs.
The provisions relating specifically to NDPs were wide enough to allow site allocation policies to be included in such plans. Section 38B, dealing in terms with the provision that could or could not be made by NDPs, contained nothing to restrict the inclusion of site allocation policies. It would be very surprising if site allocation policies could not be included, since the location of housing was likely to be the single most important planning issue for a neighbourhood. Although there was an express power in section 38B(4) for regulations to restrict the provision that could be made, the Neighbourhood Planning (General) Regulations 2012 made under that section contained no material restriction. Overall, the statutory regime governing NDPs plans clearly allowed such plans to include site allocation policies. The statutory power to make NDPs that included site allocation policies was not cut down by regulations made under a power conferred by a section, namely section 17, located in a different part of the statute and dealing with a different subject matter.
(2) In their screening report, the respondents had concluded that the NDP was not likely to have significant environmental effects and that an SEA was therefore not required in respect of it. That report was not flawed by a failure to consider the positive, as well as negative, effects on the environment. It was apparent that the author of the screening report had given detailed consideration to the SEAs already carried out for the core strategy and the DPD on site allocations and policies and to the question of whether the NDP introduced significant changes. It was improbable that anyone considering the SEAs for the respondents’ documents would have failed to appreciate that they examined positive as well as negative effects or would have failed to have regard to both aspects when considering whether there were any significant changes introduced by the NDP. Although the report was badly expressed, documents of that kind were to be read as a whole and with a degree of benevolence. Taking that approach, the judge had been entitled to find that the author of the report considered positive as well as negative effects.
David Elvin QC and Charles Banner (instructed by Marrons Shakespeares) appeared for the appellant; Alan Evans (instructed by the legal department of Peterborough City Council) appeared for the respondents; Nathalie Lieven QC (instructed by the Government Legal Department) appeared for the secretary of state for communities and local government, as intervener; the interested party did not appear and was not represented.
Sally Dobson, barrister
