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Developer loses Court of Appeal challenge over neighbourhood plan

The Court of Appeal has rejected a developer’s challenge over the inclusion of site allocation policies in a neighbourhood development plan.

The appellant in Larkfleet Homes Ltd, R (on the application of) v Rutland County Council & Ors [2015] EWCA Civ 597 was a house-building company with a commercial interest in land to the west of Ayston Road in the town of Uppingham in the county of Rutland.

In July 2011 Rutland County Council, the local planning authority, adopted a Core Strategy in which Uppingham was identified as a sustainable location for new development.

Early versions of the related Site Allocations and Policies Development Plan Document (SAPDPD), which were the subject of consultation in 2011 and 2012, made provision in respect of Uppingham and in the 2011 version listed the Ayston Road land as a potential site.

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Such provision was not, however, carried forward into the version published for consultation in April 2013 and submitted to the Secretary of State for public examination in July 2013.

This was because Uppingham Town Council had by then put in motion the process for making a neighbourhood development plan for the area pursuant to the statutory regime introduced by the Localism Act 2011.

The position was explained as follows in the April 2013 version of the Site Allocations and Policies DPD:

"1.9 A separate Neighbourhood Plan for Uppingham is being prepared by Uppingham Town Council. This will cover Uppingham town and parts of the surrounding area and will be subject to separate consultation, examination and referendum under the Neighbourhood Planning process.

1.10 The Uppingham Neighbourhood Plan will consider proposals for residential, employment and other land use allocations in its area and allocate sites where appropriate. Consequently no sites are allocated for development in Uppingham in this Site Allocations and Policies DPD although all other policies of the plan will apply in this Area.

1.11 Sites for residential and employment development in Uppingham that were previously identified in the Preferred Options version of this Site Allocations and Policies DPD are not carried forward in this version of the plan but will be put forward to Uppingham Town Council together with the responses to consultation that have been received for consideration through the Uppingham Neighbourhood Plan."

Larkfleet made detailed representations objecting to the omission of allocations relating to Uppingham from the Site Allocations and Policies DPD, but those representations were rejected by the inspector and there was no material change to the document as adopted by the council in October 2014.

The initial draft of the Uppingham Neighbourhood Plan ("the UNP") was published in May 2013 and was the subject of public consultation in June-July 2013.

The draft contained a policy allocating three sites for housing development at Uppingham. There were certain differences from the allocation previously proposed in the Site Allocations and Policies DPD.

The three sites were retained in a revised draft consulted on later in the year, and in the final draft approved by Uppingham Town Council in December 2013.

Rutland then appointed an independent examiner who issued a report in May 2014, recommending that, subject to certain proposed modifications, the UNP should proceed to a referendum. The referendum took place in July 2014 and produced a strong majority vote in favour of the proposal.

At all material stages of the UNP process, Larkfleet made submissions that adoption of the UNP would be unlawful. The UNP was put "on hold" pending the determination of the proceedings.

Larkfleet’s claim was for judicial review of Rutland County Council's decision of 29 May 2014 to proceed to a referendum on the UNP.

The claim was dismissed by Mr Justice Collins in the High Court in December last year.

Permission to appeal was granted by Sullivan LJ on two grounds, to the effect that:

  1. pursuant to regulations under section 17(7)(za) of the Planning and Compulsory Purchase Act 2004 as amended, site allocation policies may be contained only in a local development document adopted under section 17, not in a neighbourhood development plan made under section 38A of the 2004 Act; and
  2. the decision not to carry out a strategic environmental assessment in respect of the UNP was legally flawed by a failure to consider whether the plan was likely to have significant positive effects on the environment.

Permission was subsequently granted to the Secretary of State for Communities and Local Government to intervene on ground 1 alone.

Giving the judgment of the court, Lord Justice Richards dismissed the appeal. (Lady Justice Sharp and Lord Justice Moore-Bick agreed)

On the first ground, Lord Justice Richards said Mr Justice Collins had been correct in his conclusion.

“Section 17 has nothing to do with neighbourhood development plans. It falls within a part of the 2004 Act dealing with local development and the functions of local planning authorities. Subsection (3) shows that the section is 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 Court of Appeal judge said. [Lord Richards’ emphasis]

“The power in subsection (7)(za) to make regulations prescribing ‘which descriptions of documents are, or if prepared are, to be prepared as local development documents’ relates to what a local planning authority may or may not do as regards its planning policies, in particular what it must include in local development documents (thereby limiting reliance on supplementary planning guidance which has not gone through the full formal process).”

Lord Justice Richards added that the structure of regulation 5 of the Local Planning Regulations reflected the wording of the subsection: regulation 5(1) dealt with documents which "are to be prepared" as local development documents, regulation 5(2) with documents which "if prepared, are to be prepared" as local development documents.

“I think it plain that in each case the regulation relates to documents prepared or to be prepared by a local planning authority, even though express reference to a local planning authority is made only in regulation 5(1),” he found.

Neighbourhood development plans, by contrast, were not prepared by a local planning authority and the statute did not use the term ‘prepared’ in relation to them: “they are proposed by a qualifying body under section 38A and are made by a local planning authority on completion of the process so initiated.”

More important, however, was “the contextual point that neighbourhood development plans are governed by a separate statutory regime”.

Lord Justice Richards said this was underlined by the fact that the relevant statutory provisions, sections 38A to 38C, were inserted into a different part of the 2004 Act from that dealing with local development documents; and the relevant definition of "development plan" in section 38(3) drew a clear distinction between, on the one hand, development plan documents (which, by section 37, are local development documents) and, on the other hand, neighbourhood development plans.

“The provisions relating specifically to neighbourhood development plans are plainly wide enough, as [counsel for the appellant] accepted, to allow site allocation policies to be included in such plans. It would indeed be very surprising if site allocation policies could not be included in them, since the location of housing is likely to be the single most important planning issue for a neighbourhood.”

In any event, Lord Justice Richards said, section 38B dealt in terms with the provision that might be made or might not be made by neighbourhood development plans.

“There is nothing in the section itself to restrict the inclusion of site allocation policies. There is an express power in subsection (4) for regulations to restrict the provision that may be made, yet the regulations under the section, the Neighbourhood Planning Regulations, contain no material restriction,” the Court of Appeal judge said.

“In short, the statutory regime governing neighbourhood development plans clearly allows such plans to include site allocation policies.”

Lord Justice Richards added: “Larkfleet's case amounts to the proposition that the statutory power to make neighbourhood development plans that include site allocation policies has been cut down by regulations made under a power conferred by a section located in a different part of the statute and dealing with a different subject-matter, namely local development documents. For the reasons I have given, the proposition is in my judgment unfounded.”

On the second ground, the Court of Appeal said a screening report was “on any view….badly expressed”, but added that documents of this kind were to be read as a whole and with a degree of benevolence.

“Looking at the report as a whole, I am not persuaded that the judge was wrong to reject the argument that the author failed to consider positive effects as well as negative effects in finding that the UNP was not likely to have significant environmental effects,” Lord Justice Richards said.

“The judge's conclusion did not take benevolence beyond its permissible limits.”

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