by Ed Dade
Posted on Jan. 19, 2019
Recently I wrote about two appeal decisions where planning permission was granted for housing development, despite the sites not being identified for development within the respective Neighbourhood Plans for the area.
These examples, and other similar cases, raise a wider question about what constitutes 'conflict' with a Neighbourhood Plan.
A recent High Court ruling, issued in September 2018, has 'tested' this issue. The claim was lodged by Chichester District Council (CDC) against the Secretary of State for Housing, Communities and Local Government, and Beechcroft Ltd. The High Court decision is available to view on the BAILII website.
In this post, I have summarised the appeal decision and High Court decision, and conclude by offering some advice to ensure your Neighbourhood Plan provides certainty about where new development will be located.
The proposal is for the development of up to 34 dwellings in Southbourne, West Sussex. The scheme was initially refused planning permission by CDC, but was subsequently granted permission by a Planning Inspector, through a planning appeal.
The Southbourne Parish Neighbourhood Plan (SPNP) came into effect in September 2015. The SPNP (policy 2) makes four site allocations, ranging in size from 25 to 150 dwellings, totalling 350 dwellings for the parish. SPNP policy 1 applies a 'settlement boundary' around the built area of Southbourne and allocated sites, and, in principle, supports development within the settlement boundary. Outside the settlement boundary, i.e. in the open countryside, the SBNP requires proposals to comply with the policies of the Local Plan.
The village of Southbourne is bisected by a rail line. Traffic congestion at the rail crossing is a key concern for the local community, and minimising this congestion is reflected in the objectives of the SPNP. Each of the sites allocations are located south of the rail line thereby minimising congestion.
The appeal site is located north of the rail line, and outside the settlement boundary.
The Chichester Local Plan (CLP) was adopted in 2015. The CLP (policy 2) defines Southbourne as a "Service Hub", identifying it as a location for strategic growth of 'medium-scale' urban extensions. In addition, CLP policy 2 defines settlement boundaries, within which sustainable development proposals will be supported.
Outside of settlement boundaries and allocated sites (i.e. in the countryside), CLP policies 2 & 45 state that development is restricted to that which requires a countryside location, meets an essential local rural need or supports rural diversification.
Whilst located beyond the settlement boundary, the site adjoins the established built up area and is fairly well linked to its facilities.
CDC and the appellant agreed that the development proposal would be contrary to CLP policies 2 and 45, as the appeal site is located outside the settlement boundary and will not meet small-scale, essential rural needs.
CDC considered that the proposal is in conflict with SPNP policies 1 & 2, as the proposal does not accord with the development strategy for Southbourne, set by the SPLP and CLP. However, the appellant contended that SPNP policies 1 & 2 are in fact silent on the question of housing development outside of settlement boundaries and are therefore not relevant to the proposal - instead, the SPNP relies on the CLP to deal with development in the countryside. The Planning Inspector agreed with the appellant that SPNP policies 1 & 2 do not directly preclude development outside of settlement boundaries.
However, the Planning Inspector also noted that the SPNP’s policies do not contain anything which explicitly supports the proposal. The Planning Inspector noted that it is clear that it is the intention of the SPNP to avoid further development north of the rail line, and the proposal is at odds with the aims of the SPNP in terms of the location of new housing. The Planning Inspector concluded that despite SPNP policies being 'silent' on the issue of development outside of settlement boundaries, this is a not a positive point in favour of the appeal proposal. In other words, saying nothing does not mean the proposal is acceptable.
The 'silence' of the SPNP on matters of countryside development, does not outweigh the proposal's conflict with CLP policies 2 and 45 and its lack of accord with the aim of the SPNP with regard to the location of new housing. Therefore, the Planning Inspector found that the proposal would be contrary to the development plan strategy for the location of residential development, when considered as a whole.
In summary, the Planning Inspector found that the proposal was inconsistent with the development plan (the CLP and SPNP), in terms of the location of development. Next, the Planning Inspector sought to determine whether this inconsistency is so significant as to constitute 'conflict' with the development plan.
At the time of the appeal, CDC was unable to demonstrate a five year supply of available housing land, and in addition its housing requirement is likely to increase in the future. As set out by the NPPF, in such circumstances the policies for housing should be considered to be 'out of date' and planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits. This issue of a lack of a five year supply is therefore highly important in determining the status of the development plan.
The Planning Inspector noted that the proposal would represent an increase of less than 10% over the 350 dwellings earmarked for Southbourne. The CLP does not set a cap on the amount of housing which should be delivered in Southbourne, instead applying 'indicative housing numbers', meaning the amount of development earmarked by the CLP could feasibly be exceeded.
The Planning Inspector considered that CLP policies 2 and 45 should still carry moderate weight, but concluded that the scale of the proposal (34 dwellings) would not be at odds with the development strategy for Southbourne. The Planning Inspector considered that in practice, the degree of harm to the development plan strategy is likely to be limited.
Following consideration of other possible impacts from the development, the Planning Inspector expressed that the proposed development is unlikely to lead to other direct harms, including that the scheme is not likely to exacerbate congestion at the railway crossing.
The Planning Inspector had regard to the content of a Written Ministerial Statement (WMS), published in December 2016. The content of the statement has since been incorporated into the new NPPF, at paragraph 14 - see 'Presumption-proofing' Neighbourhood Plans. In summary, the national policy and WMS, indicate that significant weight should be given to Neighbourhood Plan policies, even where there is a lack of a five year land supply (as in the case of Southbourne). However, as the Planning Inspector had found that the proposal would not conflict with the policies of the SPNP and would not materially increase congestion at the railway crossing, the development would therefore not cause harm in respect of the underlying reason why the SPNP seeks to restrict development north of the railway line.
The Planning Inspector recognised that a great deal of time and effort had been invested into the preparation of the SPNP by local people, and raised the issue that allowing the appeal could undermine confidence in the planning process run counter to the social aspects of sustainability.
In weighing up the sustainability of the proposal, the Planning Inspector identified the importance of ‘significantly boosting the supply of housing’ - a key objective of the NPPF.
With the above considerations in mind, the Planning Inspector concluded that the provision of 34 new dwellings in a location with reasonably good access to local facilities and public transport and no significant environmental or infrastructure constraints would make a valuable contribution to the supply of housing. The proposal would also contribute to the provision of affordable housing in an area of high housing need. Taken together, the Planning Inspector considered that these amount to very significant benefits.
In addition, the Planning Inspector acknowledged the 'moderate' economic and environmental benefits of the proposal, such as construction jobs, spending by future resident at local facilities the New Homes Bonus, publicly accessible open space, planting and ecological enhancements.
Through applying the ‘presumption in favour of sustainable development’, as set out by the NPPF, the Planning Inspector concluded that the benefits of the scheme, namely in delivering housing, are sufficient to overcome the conflict with CLP Policies 2 and 45 and the aims of the SPNP with regard to the location of new housing.
CDC challenged the Planning Inspector's decision on two grounds. Firstly, that the inspector failed to decide whether the proposed development conflicts with the SPNP.
Secondly, CDC contended that the inspector irrationally relied upon a distinction between the SPNP's "policies" and "aims" when assessing whether the proposed development conflicted with the SPNP.
The judge, Judge Grubb concluded that the Inspector’s Decision Letter, had clearly reached a conclusion as to whether the proposed development conflicted with the SPNP - the Planning Inspector had found that the proposal does not conflict with the SPNP, but does conflict with the CLP. The development proposal is therefore in conflict with the development plan, by virtue of being in conflict with the CLP.
Judge Grubb considered that the Planning Inspector’s distinction between the "policies" set out in the NP and its "aims" is rational. The SPNP identified new sites for housing in and around Southbourne based upon the indicative number of houses allocated to Southbourne in the CLP. Policy 1 sets out the settlement boundary for development and Policy 2 identified the allocated sites for settlement. Whilst an underlying "aim" of the plan in Policies 1 and 2 included avoiding development to the north of the Stein Road level crossing in order to avoid traffic congestion, it was not explicitly part of either Policy 1 or Policy 2. Judge Grubb concluded that the Inspector did not err in law by drawing an irrational distinction between this "aim" and the "policies".
The proposal was not explicitly contrary to either Policy 1 or 2, as the Planning Inspector had concluded. The policies neither supported proposals outside the settlement boundary, nor sought to manage such proposals, leaving this responsibility to the CLP. As stated by the Planning Inspector, the SPNP is "silent" on development outside the settlement boundaries. Whilst, it was an "aim" to restrict development to the south of the Stein Road level crossing, this was not expressed in SPNP's Policies 1 and 2 so that it can properly be said that any proposed development there (or anywhere outside the settlement boundary and specified areas) "conflicts" with the NP.
The Inspector took into account that the proposal was at odds with the aim of avoiding development north of the Stein Road level crossing in order to prevent traffic congestion. But, whilst recognising this "aim" of the SPNP, concluded that the development would not "materially exacerbate congestion at the railway crossing" .
Judge Grubb therefore concluded that the Planning Inspector had not acted irrationally in determining that the proposal was not in conflict with the SPNP. The challenge was dismissed.
From my experiences, in addition to being able to say where development should be located, communities preparing neighbourhood plans expect that their neighbourhood plan should also be able to say where development should not be located. Unfortunately, in the Southbourne case (and also in the cases of Chinnor and Wingerworth, which I have previously discussed on my site), the Neighbourhood Plans did not prevent unplanned developments being granted planning permission at appeal.
For many communities, protecting areas from development is often a major motivation for writing the plan. This does not necessarily mean that such communities are 'anti' development. Many communities may have valid, justifiable concerns about the impacts of development on local infrastructure, landscape, flood risk, and the character and identity of their town or village; or simply are exercising their democratic right to influence the location of new development through a Neighbourhood Plan.
High Court rulings and appeal decisions set precedents which strongly influence future decision-makers (planning officers, neighbourhood plan examiners, planning inspectors, judges, the Secretary of State, etc.). The Southbourne case is therefore significant and raises a number of issues we can learn from.
To ensure your Neighbourhood Plan provides certainty about where new development will take place, it should provide a comprehensive development strategy for housing. In other words, the Neighbourhood Plan should set out where development will be encouraged and where it will be more limited, for all locations within the Neighbourhood Area.
Paragraph 14 of the NPPF offers a ‘lifeline’ to Neighbourhood Plans. In essence, it states that in situations where the presumption in favour of sustainable development applies, developments proposals which conflict with a Neighbourhood Plan should likely be refused. The precise requirements of Paragraph 14 are discussed in ‘Presumption-proofing Neighbourhood Plans’. In the Southbourne case, this wouldn't apply as the Neighbourhood Plan was found to be 'silent' on the relevant issue of development in the countryside, meaning there was no conflict with the Neighbourhood Plan policies, despite it clearly not being the plan's intention to enable such developments to occur.
Whilst there is a clear relationship between Local Plans and Neighbourhood Plans, relying on the Local Plan to deal with certain development proposals can leave the Neighbourhood Plan vulnerable. For example, Local Plans can become 'out of date' where the delivery of new housing has been poor, meaning it carries less 'weight' in decision-making. Whilst your Neighbourhood Plan will clearly be influenced by the Local Plan and must accord with the strategic policies, your Neighbourhood Plan policies should ‘stand on their own feet’ and not depend on the Local Plan policies to deal with certain development proposals.
Similarly planning designations such as 'settlement boundaries' (a.k.a village envelopes, development envelopes, etc), should not simply be carried over from the Local Plan, but should be reviewed during preparation of the Neighbourhood Plan.
Where there are areas in which development should genuinely be restricted, this must be justified by evidence. For example, some Neighbourhood Plans are supported by assessments of views, green spaces, landscape and townscape character. You may wish to explore using tools such as Local Green Space designation to protect important open spaces from development. To set a 'cap' on the amount of development which can take place would require robust evidence that exceeding this limit would result in adverse harm.
In this game there are no guarantees. The NPPF (para. 12) requires that where a planning application conflicts with an up-to-date development plan (including any neighbourhood plans), permission should not usually be granted. However, there may be other relevant 'material considerations' which could influence the decision-making process, even where a proposal is in conflict with a Neighbourhood Plan. Hopefully my suggestions will help you to ensure your Neighbourhood Plan is robust and resilient.