by Ed Dade
Posted on Feb. 12, 2019
I was reviewing recent appeal decisions, and came across the case of the Linton Neighbourhood Plan.
The plan had previously been subject to a legal challenge, which highlights the scope a local authority has in modifying a Neighbourhood Plan once it has been independently examined. Specifically, this article discusses the modifications set out in the Examiner's Report, following the Independent Examination and prior to the referendum - not substantive changes differing from the recommendations of the examiner, or undertaken at a different stage in the process.
In the appeal decision, a Planning Inspector has granted outline planning permission for 26 dwellings at Ridge Meadows, Northgate Lane / Tibgarth, Linton, West Yorkshire. The site is located within the area of Leeds City Council, and within the Linton Neighbourhood Area. The decision was issued on 14 December 2018, under appeal reference: APP/N4720/W/17/3186216.
In summary, Leeds City Council is unable to demonstrate a five year supply of housing land, meaning the Planning Inspector applied the 'tilted balance' - treating some policies as 'out-of-date' and testing whether the proposal will result in 'adverse harm'. You can read more about how you can make your Neighbourhood Plan resilient to the 'tilted balance' in my article "Presumption-proofing" Neighbourhood Plans.
The appeal site is located in an area which has been safeguarded for future development since 2001. In other words, reserved for future development, rather than being made available for development at present. The Planning Inspector considered a number of other issues relating to the sustainability of the site, including access to services and facilities, pedestrian safety, etc.
The Planning Inspector noted that the Linton Neighbourhood Plan (LNP) does not include any policy which restricts development of the site, meaning the scheme does not conflict with the LNP.
You can read more about the issue of 'conflict' with a Neighbourhood Plan in my post Conflict with a Neighbourhood Plan & how to provide certainty on the location of development. Interestingly, the LNP does express its objection to development at 'The Ridge' - an issue I will return to later.
The appeal is quite unexceptional, and not altogether interesting for those of us involved in writing Neighbourhood Plans. However, what is perhaps more interesting is the Linton Neighbourhood Plan itself, and the challenge it previously faced through the courts.
When Collingham and Linton Parish Council submitted the draft LNP for independent examination, the draft LNP included a policy which, in essence, sought to restrict development of the appeal site (The Ridge) until a later time.
The Independent Examiner recommended the policy, and its associated supporting text, be deleted as the issue of development of The Ridge is a strategic matter under consideration of Leeds City Council, and is addressed by an existing policy which the LNP had simply re-stated. Leeds City Council amended the LNP and it proceeded to referendum.
Kebbell Developments Ltd challenged the LNP in the High Court on claiming that Leeds City Council had, in modifying the plan, gone above and beyond the examiner's recommendations.
Leeds City Council had deleted the offending policy and supporting text, but also inserted text which described a number of reasons why the appeal site was considered not suitable for development, including visual impact, traffic issues and access to facilities.
In addition, the LNP included a "Project Priorities List" - a list of projects and issues which reflects the community's aspirations for the area, but which is not in itself a planning policy. This list made reference to the now deleted policy, and therefore naturally needed to be corrected. However Leeds City Council retained text which expressed the Parish Council's aspiration to return the appeal site to Green Belt.
However, the challenge was rejected by the High Court in October 2016, and the verdict was confirmed by the Court of Appeal in March 2018.
The Town and Country Planning Act 1990 (as amended) sets out the modifications which a local authority is permitted to make to a Neighbourhood Plan. In his appeal decision, Lord Justice Lindblom identifies that the Act provides local authorities with "broad discretion in considering whether a particular modification is necessary for the purposes of satisfying the 'basic conditions'.
One must not adopt too narrow an understanding of the local planning authority's statutory power to make modifications - Lord Justice Lindblom
The Act provides local authorities with the power to correct errors. Lord Justice Lindblom considers that this is not confined to the correction of "typographical mistakes and other minor infelicities", but includes amendments necessary to achieve accuracy and consistency in the wording of policies and their supporting text.
Whilst the examiner required the policy and supporting text to be deleted, he did not, conclude that the neighbourhood plan should avoid referring to the parish council's opinion on the development potential of the sites listed. By including the parish council's view (that The Ridge should be retained as Green Belt) in the Neighbourhood Plan will have some status when making planning decisions, despite this potentially contradicting with strategic matters of the Development Plan. Lord Justice Lindblom noted the issue, but concluded this is a matter to be resolved during the determination of a planning application.
The issue of the status of 'supporting text' contained in a Neighbourhood Plan is an interesting one and a topic I will return to in a future post, no doubt.
All Neighbourhood Plans, must be examined before they may proceed to a referendum in which people will vote on whether the plan should be 'made' by the local authority. For the vast majority of Neighbourhood Plans, the examiner will recommend some 'modifications' - specific changes to ensure the plan meets the 'basic conditions'. It is therefore very likely you will, at some point, have a conversation with your district or borough council about how your plan should be modified.
This Linton case should give some comfort that the local authority has broad discretion in modifying the plan. For example, where the examiner's modifications relating to subjects which are sensitive, you may want to think carefully about how the plan should be amended.
Perhaps the ruling may affect how examiner's make modifications. Why bother setting out detailed modifications if the local authority has the power to do something different? The examiner can simply describe how the plan should be modified, and leave it up to local authority and parish council to figure out precisely how this should be achieved.
Ultimately, how the plan is modified must address the examiner's concerns and give the local authority confidence that the plan meets the 'basic conditions'.
In the Linton case, Kebbell Developments were both the appellant in the planning appeal, and launched the legal challenge of the LNP. Clearly, Kebbell Developments has got what it wanted through the granting of the planning permission. It must have been quite an ordeal for the parish council and city council, to experience the LNP being challenged in the High Court - and is not what most people would expect to face when preparing a Neighbourhood Plan.
However, the case is helpful in that it confirms the broad powers that local planning authorities (i.e. district and borough councils) have to modify a plan. By working collaboratively with the local planning authority, this may help to ensure the community's 'voice' is retained in the Neighbourhood Plan.