A boost for neighbourhood planning

Planning 146x219A High Court judge earlier this month handed down a decision that will be of interest to all those involved in neighbourhood planning and will encourage those involved in promoting such plans. Martin Carter explains why.

In the case of  R (BDW Trading Limited, t/a Barratt Homes and others) v Cheshire West and Chester Council and others [2014] EWHC 1470 (Admin) two major house builders, Barratt Homes and Wainhomes challenged, by way of judicial review, the decision of Cheshire West and Chester Borough Council to put the Tattenhall Neighbourhood Plan to a referendum after it had been examined by an independent examiner, Mr Nigel McGurk.

The claimants, along with Taylor Wimpey, have undetermined appeals against the refusal of planning permission for residential development for schemes of 68, up to 110 and up to 137 dwellings. Inquiries were held into those appeals last June and decisions are still awaited.

Tattenhall lies in the former area of Chester City Council and the Development Plan comprises the saved policies of the Chester District Local Plan. The saved Local Plan covered the period to 2011 and its housing requirement policy, HO1 was not saved. Part 1 of a new Local Plan, containing strategic policies, has been submitted to the Secretary of State for examination and hearings are programmed for June 2014. As is often the case, the housing requirement figure in the plan is the subject of a number of objections.

The Neighbourhood Plan has been the subject of Strategic Environmental Assessment. The final in a series of reports stated that no detailed process of assessing options had been gone through as the plan had been the subject of ongoing public consultation and a clear local vision of how the area should develop had emerged through that process. The only options tested were “do nothing” and “do something” – the only difference being the presence of the neighbourhood plan with its proposed policies in play in the latter.

The draft plan referred to accommodating growth in Tattenhall in a way which respected its character. The plan’s promoters considered that unmanaged growth would erode the character of the village. Proposed policy 1 in the plan provides that policies involving up to 30 homes would be allowed within or immediately adjacent to the built up part of the village over the plan period, with limited exceptions.

All three developers objected to policy 1. One can readily see why. The Examiner recommended that this element of policy 1 should not be changed. He noted that policy 1 does not seek to fix the overall amount of development which can take place – its emphasis is on how housing will be delivered.

The claimants’ challenge raised two sets of issues which are of interest. The first was an allegation that the Strategic Environmental Assessment process was defective. The SEA Directive and the Environmental Assessment of Plans and Programmes Regulations 2004 both require there to be an assessment of the likely significant effects of the plan and of reasonable alternatives to it. The claimants submitted that the council’s express disavowal of assessing alternatives was a breach of the Directive and the Regulations. The claimants contended that alternatives such as allowing fewer, larger sites to be developed or adopting a different numerical limit should have been assessed.

The council relied upon the detailed consultation which had been carried out and also pointed out that, uniquely for a component of the Development Plan, the plan had to command public support before it would take effect, because of the need for it to be supported at referendum. The council argued that pursuing an option which would not command support was not an alternative which it was reasonable to investigate. The defendant also drew attention to the provisions of the Directive and Regulations allowing the geographical scope of the plan, and its place within a hierarchy of plans, to be taken into account when assessing the extent of the SEA which is required. 

The judge, Mr  Justice Supperstone, accepted the submission that the question of whether adequate alternatives were addressed when carrying out SEA was a matter of planning judgment. He concluded that the Examiner had been entitled to accept that the consideration of alternatives met the requirements of the Directive and the Regulations. He expressly accepted the council’s reasons for there being no wider testing of alternatives.

The second topic concerned the questions whether the plan met the basic conditions for a neighbourhood plan and whether policy 1 had been based on proper evidence and properly examined.  

The legislation governing the examination of neighbourhood plans does not require a neighbourhood plan to be sound. Instead, paragraph 8(2) of Schedule 4B to the Town and Country Planning Act 1990 sets out a number of “basic conditions” which a neighbourhood plan must meet. Those at issue in this case were whether:

  • Having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the plan [Basic condition (a)];
  • The making of the plan contributes to the achievement of sustainable development; [Basic condition (d)]: 
  • The making of the plan is in general conformity with the strategic polices contained in the development plan for the area of the authority [basic condition (e)]; and
  • The making of the plan does not breach and is otherwise compatible with, EU obligations [basic condition (f)].

The claimants' argument on basic condition (f) related to the SEA point and the rejection of the separate ground on that point meant this issue fell away. The claimants argued that condition (a) could not be met because there had been no consideration of whether the restraint mechanism in policy 1 was appropriate in order to meet the objectives of national policy, particularly paragraph 47 of the NPPF (providing for full, objectively assessed housing needs and significantly boosting the supply of housing). They contended that condition (d) could not be met because the Borough-wide consequences of the restraint policy had not been investigated. They claimed condition (e) was not met because the Examiner only considered whether or not the plan would deliver housing above the adopted development plan rate and had pointed out that there were no strategic development plan polices in the saved Local Plan against which to judge the plan’s content.

The theme underlying the claimants’ arguments was that there was no hint in the legislation that question whether it is “appropriate” to make the plan is a “lighter touch” than requiring Local Plans to be “sound”.

The claimants’ submissions were rejected. Mr Justice Supperstone accepted the submissions on behalf of the defendant that the neighbourhood plan examiner has a more limited role than an inspector examining a Local Plan. Condition (a) requires regard to be paid to national policy and then a consideration of whether it is appropriate to make the plan. There is no legislative requirement for a NP to be “sound”. As for condition (d), the Examiner gave proper consideration to the question of whether the TNP would contribute to sustainable development. There was no obligation on the Examiner to consider the wider ramifications of policy 1 for the delivery of housing in the Borough. That submission confused the role of a Neighbourhood Plan Examiner with the role of a Local Plan Examiner. The two statutory regimes regulating the different examinations have numerous differences between them. The Local Plan process is complex and such a plan has to be submitted to the Secretary of State for examination. Paragraph 182 of NPPF prescribes detailed requirements for soundness testing, namely that the LP should be positively prepared, justified, effective and consistent with national policy. A Neighbourhood Plan only has to meet the basic conditions. Although a Neighbourhood Plan has to be in general conformity with the strategic policies in the development plan, that is a judgment to be reached on conformity of the Neighbourhood Plan as a whole with the strategic Local Plan policies, also taken as a whole. Basic condition (e) relates to the adopted Development Plan and not any emerging plan.

The judge held that it was simply not incumbent upon the Examiner to enquire properly into the justification for the 30-dwelling limit. That too confused the roles of the two kinds of examiner. The judge was satisfied with the council’s explanation that the limit of 30 was a matter of planning judgment made after local consultation. The Examiner, in his report, properly addressed the material in front of him about the 30 limit and there was a proper evidential basis for policy 1. 

The result in this case will encourage people promoting neighbourhood plans. It implies that the SEA process will be less rigorous for a neighbourhood plan than for a local plan given such a plan’s reduced geographical scope and its place in the hierarchy of plans such that Borough-wide issues will be considered in the Local Plan process. It also appears that the fact that a neighbourhood plan has to command public support at referendum is relevant to the question of deciding what the reasonable alternatives to the plan’s proposals are. The case also makes it plain that the examination of a neighbourhood plan is not as rigorous as that required for a Local Plan: the basic conditions do not import a test akin to soundness testing of Local Plans and the neighbourhood plan examiner can apply a “lighter touch”. 

Martin Carter is a barrister at Kings Chambers. Together with Stephen Sauvain QC, he appeared for Cheshire West and Chester in this case.