by Ed Dade
Posted on Dec. 8, 2020
This post explores a recent legal challenge to the Norton St Philip Neighbourhood Plan, and investigates how we can make successful 'Local Green Space' designations through Neighbourhood Plans.
Photo by Karol D from Pexels
Neighbourhood Plans can designate ‘Local Green Spaces’ to protect green areas which are of special importance to the community. For example, recreation grounds, beauty spots, wildlife areas, historic sites, and other green spaces can all benefit from designation as a Local Green Space – or LGS for short.
Designating LGSs is a fairly common function of Neighbourhood Plans (and also Local Plans), and many readers will likely be familiar with the concept. If you have never heard of LGS's before, Locality's Making local green space designations in your neighbourhood plan provides guidance.
Norton St Philip is a historic village in a rural area of Somerset with a small population of roughly 850 people, located within Mendip District Council's administrative area in the county of Somerset. The Norton St Philip Neighbourhood Plan was prepared by Norton St Philip Parish Council.
The legal challenge is fairly complex, including a judicial review and appeal in the High Court. The purpose of this blog post is to identify what we can learn from these cases to help us make succesful policies and designations for LGS's. In writing this post, I have reviewed the following documents:
Lochailort Investments Limited (hereafter 'the developer') are a property developer who purchased a number of sites in Norton St Philip for potential development. The developer has applied for planning permission on its sites for the development of housing, community buildings and other works - including land within two LGS's designated by the Norton St Philip Neighbourhood Plan (NSPNP).
The NSPNP was submitted to Mendip District Council in early 2019, and examined in summer 2019. An injunction prevented the NSPNP from proceeding to referendum until the appeal proceedings were concluded.
Clearly, the developer and NSPNP are at odds with one another - the NSPNP seeks to protect land which the developer wishes to build on.
Following an initial judicial review, the developer lodged an appeal against the judge's decision. The developer made four grounds of appeal, of which the first two are of most relevance to this post. In summary, these are -
The government's planning policies for England, National Planning Policy Framework (NPPF), enables communities to protect green areas through Neighbourhood Plans:
"99. The designation of land as Local Green Space through local and neighbourhood plans allows communities to identify and protect green areas of particular importance to them."
At paragraph 101, the NPPF states that policies for managing development within a Local Green Space should be consistent with those for Green Belt land.
At paragraph 133, the NPPF explains that the the "fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open". The NPPF (para. 144) advises that, when determining planning applications, substantial weight should be given to any harm to the Green Belt.
This illustrates the power of LGS - national policy grants LGS's equivalent status to Green Belt, thereby ensuring they remain open, undeveloped green areas.
Inappropriate development is, therefore, harmful to the Green Belt, which the NPPF states (at para. 143) "should not be approved except in very special circumstances." However, there are a number of different types of development which in certain exceptional circumstances are appropriate in Green Belts - for example, buildings for agriculture and forestry; facilities for outdoor sport, outdoor recreation, cemeteries and burial grounds and allotments; the extension or alteration of a building; replacement of a building; infilling in villages; affordable housing for local community needs; mineral extraction; engineering operations; local transport infrastructure; the re-use of buildings; and development brought forward under a Community Right to Build Order or Neighbourhood Development Order, etc.
The NSPSP includes a policy, Policy 5, which identifies areas for designation as Local Green Spaces - and manages development within those spaces. It states:
"Development on Local Green Spaces will only be permitted if it enhances the original use and reasons for the designation of the space."
In other words, Policy 5 limits development to only those schemes which improve the LGS, and ties such development closely to the use of the space.
In the High Court Appeal, the judge considered that "policies for managing land within an LGS should be substantially the same as policies for managing development within the Green Belt".
Green Belt policy allows some development in very exceptional circumstances, whereas Policy 5 allows only a very small category of development - which "enhances the original use and reasons for the designation of the space".
For example, Green Belt policy would allow sites to be used for outdoor sport if such development preserves openness. Whereas Policy 5 may not, because it requires any development to enhance the original use and does not permit a change of use.
In addition, Policy 5 requires any development to enhance the reasons for the designation. Green Belt policy does not require 'enhancement'. National policies for managing development in the Green Belt aim to do-no-harm, rather than make-it-better.
The judge agreed with the appellant that the NSPNP's Policy 5 is more restrictive than national policies for managing development within the Green Belt. The judge therefore concluded that Policy 5 is not consistent with national Green Belt policy.
Failure to comply with the NPPF does not make the plan unlawful, since the NPPF is a material consideration and is not the law. However, the judge noted that there was no clear justification why Policy 5 should take a different approach to national policy.
At paragraph 100, the NPPF sets clear criteria for designating Local Green Spaces. The LGS designation should only be used where the green space is:
In addition, paragraph 99 also requires that local green spaces"be consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services", and "be capable of enduring beyond the end of the plan period".
The requirements of para. 99 are more vague and complex than those listed at para. 100, and it is perhaps unclear how a Neighbourhood Plan should respond to these additional criteria. For example, Locality's toolkit for designating Local Green Spaces does not directly make reference to the requirements of para. 99 as criteria for assessing LGSs.
In the High Court appeal case, the appellant argued that the NSPNP did not give consideration to the requirements of para. 99- suggesting that the LGSs were not, therefore, lawfully designated.
This challenge was rejected by the judge, who felt this matter had been adequately addressed by the judge during the judicial review. The judge acknowledged that the Independent Examiner had accepted the Parish Council's view that the LGSs contribute to sustainable development and are capable of enduring beyond the plan period - and the local planning authority had accepted the findings of the Independent Examiner.
Through the appeal it was confirmed that each of the areas identifed as a LGS by the NSPNP was lawfully designated. However, the NSPNPs Policy 5 is not consistent with national planning policies for managing development within the Green Belt. The appeal was allowed on that ground alone.
This case provides us with some useful learning points for crafting policies for designating Local Green Spaces, and managing development proposals within them.
Firstly, policies for managing development on Local Green Spaces must be consistent with national policies for managing Green Belt. Such policies should not seek to impose more stringent requirements than those set by national policy.
However, neither should policies simply regurgitate national policy for Green Belt - Section 9 of Locality's Making local green space designations in your neighbourhood plan provides some excellent examples of the sorts of things a LGS policy can reasonably do to protect LGSs and shape developments which may affect them.
There is a fundamental difference in scale between 'Green Belt' land, which tends to be applied to large swathes of open countryside around large urban areas, and 'Local Green Spaces' which by definition are 'local' in their nature. Perhaps some confusion arises when trying to interpret Green Belt policy at the scale of a Local Green Space - such as a recreation ground or local beauty spot.
Crucially, policies for managing development in a LGS should seek to prevent any harm to the green space - and only permit harm to occur where this is outweighed by other exceptional circumstances. Local Green Space designation is a powerful tool to resist inappropriate development, and creates an opportunity to plan positively to enhance their beneficial use.
The developer's claim that the NSPNP had failed to consider whether the LGSs were capable of enduring beyond the plan period was rejected by the judge. The appeal case should give some comfort insofar that the requirements of para. 99 are not specific, measurable criteria - like those at para. 100.
However, to avoid similar challenges that a LGS has not been lawfully designated, it would be prudent for Neighbourhood Plans to provide some justification as to how its LGSs comply with the requirements of NPPF para. 99.
A Neighbourhood Plan should explain how its LGSs fit into the bigger picture - how they contribute to the sustainability of the community. Crucially, plans should demonstrate the LGS's longevity - that they are capable of enduring beyond the plan period. For example, that the LGSs meet the community's needs now and will continue to do so for the forseeable future - and that such spaces are unlikely to be required to meet growth needs.