The Government even enshrined the supposed importance of adopted NPs into the National Planning Policy Framework. NPPF para 183 says that “Neighbourhood planning gives communities direct power to develop a shared vision for their neighbourhood and deliver the sustainable development they need. Parishes and neighbourhood forums can use neighbourhood planning to …. set planning policies through neighbourhood plans to determine decisions on planning applications; …” Para 198 goes on to tell us, in clear language that: “Where a Neighbourhood Development Order has been made, a planning application is not required for development that is within the terms of the order. Where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted”. [My emphasis]
We all realise of course that NPs sit at the bottom of the pecking order of primacy in that they have to be consistent with national planning policy and current local plans, that NPs must support the strategic development needs set out in local plans, including policies to boost housing and economic development (NPPF para 16). But with all the huge effort put into developing neighbourhood plans by so many parish and town councils in liaison with their residents it would be reassuring to know that this great effort brings the assurance of stability that the localism agenda carrot dangles before them – see e.g. NPPF para 184: “Neighbourhood planning provides a powerful set of tools for local people to ensure that they get the right types of development for their community.”
So let’s start with the good news. In two recent planning appeal decisions, the Secretary of State (both appeals were called in) decided that “very substantial negative weight” had to given to proposals that conflicted with the NP concerned. [See Downloads below for PDFs] In both cases the applications involved far larger developments than the NP proposed and on sites rejected for future development within the NP. In both cases the developers’ appeals were rejected, with NPPF para 198 being cited to justify the decisions. The earlier of those decisions was challenged by the developer in a significant test case in the Courts with the Court affirming the legitimacy of the Secretary of State’s approach in a detailed judgement. That court decision should be compulsory reading for anyone seeking to understand the role of NPs in more detail.
These planning decisions are particularly significant because in neither case did the district planning authority concerned have an adequate 5 year housing land supply and in one case the NP itself was also already out of date (depressing to think that a neighbourhood plan can itself already be out of date!). This meant that the District Plan housing policies were outdated and that the NPPF’s presumption in favour of sustainable development was engaged.
Nevertheless the Secretary of State decided that the adverse impacts of the appeal proposals, especially in terms of the conflict with the NP, would significantly and demonstrably outweigh the benefits in terms of increasing housing supply. He therefore concluded that there were no material circumstances that indicated the proposals should be determined other than in accordance with the development plans (i.e. the NPs). In so doing he concluded that the planning balance weighed more in favour of upholding the NPs, as NPPF para 198 normally requires, than in accepting the developments to reduce the Districts’ housing shortfalls. And the High Court has accepted that this was a rational decision.
It is significant to both decisions, I think, that both NPs had been prepared using detailed evidence as to local community housing need, had analysed which sites within the NP area were suitable for new housing, and had considered how best they could contribute to the district’s development needs. If this detailed evidential work had not been undertaken, and accepted at the NPs’ public examinations, it is possible that the decisions might have gone the other way. So NPs that lack a sufficiently comprehensive evidence base as to housing need and site availability, as some do, may well be rather less impregnable to attack.
With that caveat, you might be forgiven for thinking that the significance of adopted NPs in the planning process was reasonably clear, secure and sacrosanct. If so, think again! The waters are far more murky, and have just been stirred up again by the very same Government Department that decided the two planning appeals I have just been discussing.
Firstly, there is the knock-on effect onto NPs of the requirement that Local Plans be kept up to date on a continuing basis: especially as regards the likely need to increase housing targets and identify more sites for development. In my little corner of Mid Sussex, for example, the District Council is already planning to update its strategic land availability assessment in 2019 before it has even submitted its draft new Local Plan with its current SHLAA for public examination.
This means that NPs themselves can all too quickly become out of date if they don’t enable the Local Plan to meet its changing strategic objectives. This is a particularly acute problem within those Districts – Mid Sussex is once again an example – where NPs have been adopted before a new Local Plan has been finalised. In Mid Sussex 20 NPs have been adopted or are in an advanced stage of development based on the District’s long-outdated 2004 Local Plan, and may all have to be rethought once the new Local Plan has finally ground its way all through the planning mill if they are to meet the NPPF requirement of consistency with the Local Plan. The NPPG now offers the unwelcome advice that: “Neighbourhood plans should consider providing indicative delivery timetables, and allocating reserve sites to ensure that emerging evidence of housing need is addressed. This can help minimise potential conflicts and ensure that policies in the neighbourhood plan are not overridden by a new Local Plan.”
Town and Parish Councils who think that an NP is a once-in-a-decade exercise that assures their communities protection against locally unwanted development are in for a disappointment.
A more significant challenge to the importance of NPs comes in the form of new changes to National Planning Policy Guidance (NPPG) issued by DCLG - yes, by the very Government Department charged with promoting its localism agenda. This new guidance focuses on the status of adopted NPs in situations where the local planning authority cannot demonstrate a five year housing supply. Far from using the opportunity to reinforce the wider impact of the Secretary of State’s decisions that emphasise the significant adverse weight to be given to schemes that conflict with an adopted NP, the guidance heads in the opposite direction.
The updated guidance emphasises that a NP, once adopted, becomes a development plan document and that, as such the stricture in NPPF para 49 applies to it where the local planning authority cannot demonstrate a five-year supply of deliverable housing sites, in which event “relevant policies for the supply of housing should not be considered up-to-date.” This of course then brings into play the para 14 presumption that planning permission should be granted for any sustainable development unless the adverse impacts of so doing would significantly and demonstrably outweigh the benefits.
Whilst this is the test contained within the NPPF, and hence the test applied by the Secretary of State in rejecting developer appeals in the two planning appeals discussed above, the thrust of the new NPPG places a wholly different emphasis on the planning priorities to be followed, and so calls into doubt whether his decisions will be followed in equivalent cases in the future.
One is entitled to feel confused, rather than enlightened, by this new guidance which evidences a schizophrenic approach by Government to the interplay between local and neighbourhood plans. The battle between local communities and speculative developers looks likely to rage on.
Michael A. Brown
15th March 2016