Two recent court decisions should be welcomed by neighbourhood planners and local planning authorities, writes Peter Edwards.
Despite uncertainty over future development needs and widespread calls for a new approach to economic growth, the government is again looking to the construction industry to reboot the economy and again targeting the planning system as a drag factor. This is despite the fact that in recent years the number of new residential planning permissions has far exceeded government targets. The truth is that the planning system is no more a cause of the housing crisis than it is to blame for the current economic downturn.
Nonetheless dramatic planning reforms are now being considered by way of a more permissive approach to development and a US-inspired zonal system of planning control. The details will emerge in a MHCLG white paper shortly though the pre-emptive policy paper, Planning for the Future, was hardly encouraging for neighbourhood planners.
Whether urban neighbourhood forums concerned about proposed new permitted development rights for city centres, or parish councils in the shires taken aback by the Secretary of State's threatened "ruination" of the countryside unless people accept more housing in the Green Belt, those involved will question whether neighbourhood planning is still worthwhile.
Although the coverage of neighbourhood plans is ever-expanding and increased grants are now available to help with the difficulties of lockdown, whether the government is genuinely committed to neighbourhood planning and what it can achieve is once again in doubt.
The courts' approach to the inevitable tensions between neighbourhood plans and local plans has also been inconsistent. Clear and unambiguous neighbourhood plan policies usually survive judicial scrutiny but where there are questions over interpretation, or the currency of those policies, the outcome is less predictable.
However, two recent court decisions reveal a more enlightened approach.
In R (Lochailort Investments Ltd) v Mendip District Council & Anor  EWHC 1146 (Admin) a housing developer argued that the Norton St Philip Neighbourhood Plan that made ten Local Green Space (LGS) designations, failed to comply with the basic conditions as it had not met the NPPF requirements for LGS designation. The developer had applied for planning permission for housing on two areas of LGS designated in the neighbourhood plan.
The inspector considering the LPA's approach to Local Green Space at the examination of the local plan noted that "the [NPPF] bar for LGS designation is set at a very high level ... [and] should be the exception rather than the rule [because] LGS designation is to be used sparingly".
However, nowhere is such a high bar for designation expressed or implied. The NPPF simply says that an LGS should be; (a) in close proximity to the community it serves, (b) special to the community or of local significance, and (c) local in character rather than an extensive area.
The Court agreed that the neighbourhood plan examiner had properly considered the NPPF requirements in finding that the plan met the basic conditions and could proceed to referendum and the developer's claim failed.
Whether or not this decision will stand, however, remains to be seen as the case is now due to be heard by the Court of Appeal and an injunction prohibiting the neighbourhood plan referendum has been extended pending the outcome of the appeal.
Nonetheless, the High Court judgment in Lochailort is a refreshing dose of common sense as the criteria for LGS designation are simply expressed in the NPPF and easy to understand, and the plan-making will of the local people who made and supported the neighbourhood plan was quite rightly upheld.
Modest areas of accessible open space have never been more important to communities than they are now. LGS is not inconsistent with Green Belt designation but serves a distinct function and has notably different criteria for designation. It must be right that, in accordance with the obvious intention of the NPPF, neighbourhood planners can designate LGS with a degree of confidence that those designations will be upheld.
Some argue that the High Court decision in Lochailort exposes a bigger problem; that the 'basic conditions' of a neighbourhood plan are at odds with the 'soundness' test of a local plan, but those concerns are misplaced.
In Lochailort the local plan inspector simply held an incorrect view of the NPPF. The interim local plan position that LGS designation should be left to neighbourhood plans is exactly how the two-tier system is intended to work; the strategic plan deferring local and non-strategic designations to the neighbourhood plan.
On the broader point, a local plan - dealing with strategic matters - therefore has a more onerous examination of its 'soundness' than the basic conditions of a neighbourhood plan that has only local planning issues within its narrower remit. Again, this is entirely logical; the more rigorous examination reflecting the strategic importance and much wider area of a local plan.
Also noteworthy and a source of encouragement for neighbourhood planners is the case of Aireborough Neighbourhood Development Forum v Leeds City Council & Others  EWHC 1461 (Admin).
Most LPAs will sympathise with the problems faced by Leeds City Council (LCC). Being the second largest LPA outside London, it covers an area with a population of 784,000 yet two-thirds of that area is Green Belt.
LCC sought to adopt a Site Allocations Plan (SAP) to meet a housing requirement - in accordance with the 2016 formula for assessing housing need - of 66,000 new dwellings (after windfall sites were accounted for). The SAP proposed sites for 12,481 dwellings in the Green Belt, with 972 of those in the Aireborough area.
Just like neighbourhood planners up and down the country, the Aireborough Neighbourhood Forum (ANF) was unhappy about this and made the point that since 2017, according to the revised standard methodology, the number of dwellings needed had fallen and there was therefore no need to plan for 972 new dwellings in Aireborough's Green Belt.
Just like LPAs up and down the country, LCC was hamstrung. The Court summarised the dilemma perfectly;
"... it became increasingly clear to the Council that the figure of 66,000 was no longer sustainable and a materially smaller number of dwellings would now need to be delivered. The problem that the Council faced was how to deal with this changing housing requirement whilst still trying to ensure that there was a development plan in place ensuring that it could be shown to have a 5 year land supply."
The Court also noted the real conundrum for LCC.
"The other part of the background to this matter ... is that Leeds housing delivery in recent years has been disappointingly low and the Council has struggled to show it has a five year land supply as is required by national policy. This had led to a number of planning appeals ... where the Council had been found not to have a five year land supply and therefore has lost the appeals. This background provided part of the importance to the Council of having the SAP in place so that it could plan and manage the location of new housing rather than the decisions being made through ... appeals.
In getting to the essence of the ANF's claim and why it should succeed, the judgment was equally clear and direct. It said that the significant fall in housing requirement numbers was a fundamental change that LCC had known at the time "required a careful response in order to meet the need for justification of GB releases", and the SAP inspectors had not taken proper account of this.
The Court held that the ANF was prejudiced by this failure, the end result of which was "the loss of a significant quantum of GB land which ... was not properly justified in terms of national policy [and which] amounts to an error of law."
Following judgment on the merits of the claim, the ANF is now arguing that all the Green Belt allocations in the SAP should be quashed.
Whatever relief is granted by the Court, this decision is highly significant and goes to the heart of a fundamental flaw in the NPPF approach to housing that the courts are generally reluctant to grapple with.
When LPA's cannot demonstrate a five year supply of housing, that is not a failure to issue sufficient permissions. Quite the opposite, it is a failure on the part of developers to deliver - or build out - the permissions already granted. In other words there is an excess in the supply of planning permissions.
However, when developers do not deliver the existing permissions so as to undermine the five year supply, the effect of NPPF policies is to issue even more planning permissions, usually via appeals. This is exactly the problem LCC had and which the Court recognised.
The absurdity is that the failure of housing developers to deliver permissions granted in accordance with planning policy is rewarded by issuing additional residential permissions that are contrary to the development plan!
In many cases the excess planning permissions granted on appeal will be on Green Belt and other high amenity land, which is exactly why housing developers continue to pursue such allocations and permissions - they are simply more profitable. In Aireborough, the Court has quite rightly intervened to prevent this happening.
The problems highlighted in this case are likely to become more acute in these straitened times. Developers will build fewer houses under existing permissions which ironically will enable them to pursue more profitable permissions on appeal.
Could Aireborough mark a shift in the willingness of the courts to tackle this problem? Neighbourhood planners - and LPAs - will certainly hope so.
© Peter Edwards