Category Archives: Localism

Local Neighbourhood Plan did not have to meet district Objectively Assessed Housing Needs

How far does a Local Neighbourhood Plan (“LNP”) have to have regard to national planning policy in allocating land for dwellings?

In Crownhall Estates Ltd, R (on the application of) v Chichester District Council & Ors [2016] it was argued that the indicative figure of 60 given in the local plan for Loxwood was too low because of that plan’s failure to meet the Objectively Assessed Housing Requirement (“OAN”) for the district consistently with the requirements of Paragraph 47 of the National Planning Policy Framework (“NPPF”) and that therefore more than 60 new homes should be provided in the LNP.

However the High Court said that reference to paragraph 47 of the NPPF was erroneous in the context of LNP preparation. Whilst that national policy was concerned with the responsibilities of local planning authorities in preparing local plans, it was not concerned with the responsibilities of parish councils preparing neighbourhood plans.

Moreover, the claimant’s argument was inconsistent with the statutory and policy framework.

There had been no requirement for the LNP to meet the full OAN, which is a concept related to a “housing market area” – typically the district covered by a local planning authority, if not larger.

The court approved the local planning authority’s statement that “OAN estimates are based upon demographic projections for the district as a whole and “cannot be readily disaggregated to the level of individual parties on settlements, or to sub-areas of the district.””

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Neighbourhood Development Plans can include site allocation policies

Can a neighbourhood development plan made under section 38A of the Planning and Compulsory Purchase Act 2004 as amended (“the 2004 Act”) include site allocation policies?

In the Court of Appeal case of Larkfleet Homes Ltd, R (on the application of) v Rutland County Council & Ors [2015], Larkfleet said that the statutory power to make neighbourhood development plans that include site allocation policies had been cut down by regulations made under a section located elsewhere in the statute and dealing with a different subject, that is to say local development documents.

The court said the provisions relating specifically to neighbourhood development plans are plainly wide enough to allow site allocation policies to be included in such plans.

It would be very odd if site allocation policies could not be included in them, because the location of housing is likely to be the single most important planning issue for a neighbourhood.

Anyway, section 38B deals with the provision that may or may 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, however the regulations under the section, the Neighbourhood Planning Regulations, contain no material restriction.

So, the statutory regime governing neighbourhood development plans clearly permits such plans to include site allocation policies.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Planning: Secretary of State had placed unwarranted reliance on neighbourhood plan assessments

In the High Court case of Gladman Developments Ltd v Aylesbury Vale District Council [2014] a decision to “make” a neighbourhood plan was challenged basically because it was claimed that the law did not allow a neighbourhood plan to include policies for the allocation of housing sites and the drawing up of settlement boundaries until such time as the local planning authority had adopted a local plan containing strategic housing policies to address the objectively assessed housing needs of the district. Gladman’s challenge was unsuccessful. The High Court judge ruled:

(i) Paragraph 8(2)(e) of schedule 4B to the Town and Country Planning Act 1990 (“the 1990 Act”) only requires general conformity with the strategic policies of the development plan – if such policies exist. If they do not exist, paragraph 8(2)(e) is not engaged, but that does not prevent a neighbourhood plan being prepared and formally “made”.

(ii) If a local planning authority finds that housing needs in its area are not being met, it should review it’s development plan documents. Once adopted such policies will prevail over any previous neighbourhood plan that is inconsistent with them (section 38(6) of Planning and Compulsory Purchase Act 2004 (“the 2004 Act”)).

(iii) If a neighbourhood plan (or one or more of its policies) gets out of date, that could be a material consideration justifying that plan being departed from and planning permission for development being granted in breach of those policies.

(iv) A neighbourhood plan may contain policies on the location and use of land for housing (or other development) and may address it’s areas local needs but such policies should not be equated with the “strategic policies” of a development plan document. It is not the function of the body responsible for a neighbourhood plan to prepare strategic policies to meet the assessed development needs across a local plan area.

Whilst Gladman’s got leave to appeal they decided not to pursue it.

In the High Court case of Woodcock Holdings Ltd v Secretary of State for Communities And Local Government & Anor [2015] the claimant sought planning consent for 120 dwellings, community facility/office space, and care home and retail units. The Secretary of State had rejected their appeal against refusal.

The court said there was no evidence before the Secretary of State as to whether or when the District Council would carry out an up to date objective assessment of housing need against which to test the proposals in the draft neighbourhood plan or that it would be carried out before the examination of the neighbourhood plan.

There was no legal requiement for such an assessment to be carried out to meet the statutory “basic conditions” for the preparation and approval of a neighbourhood plan.

Neither would the examination of the neighbourhood plan consider whether the policies of a plan were “justified” by a proportionate evidence base (the “soundness” test).

However, in this case the Secretary of State had assumed that the remaining stages of the neighbourhood plan “may show that more land needs to be allocated”.

However given that the District Council had not made any proper needs assessment, and the limited statutory ambit of the process for the preparation and examination of a neighbourhood plan, the Secretary of State had made an assumption, not based upon any evidential or legal justification, which had been the basis of his dismissing the planning appeal.

So on this ground alone the Secretary of State’s decision to refuse the appeal must be quashed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Local plan had failed to make prior objective assessment of housing needs

On housing, the National Planning Policy Framework (“the NPPF”) differed from the earlier national guidance in two major respects:

1. Consistent with the Localism Act 2011, the NPPF substituted localism for the regional, “top down”, approach to housing strategy, with planning authorities now being required to cooperate with neighbouring authorities to develop housing strategy themselves.

2. The NPPF emphasised the need to significantly increase the supply of housing. Paragraph 47 of the NPPF requires a two-step approach: first, an objective assessment of full needs for market and affordable housing (“OAN”), and then secondly a distinct assessment as to whether (and, if so, to what extent) other NPPF policies – including those designed to protect the environment – dictate or justify constraint in planned housing provision.

It is not enough:

– for all material considerations (including need, demand and other relevant policies) simply to be weighed together; or

– simply to determine the maximum housing supply available, and constrain housing provision targets to that figure.

In the Court of Appeal case of Solihull Metropolitan Borough Council v Gallagher Estates Ltd & Anor [2014] the respondents had applied to the High Court under s.113(3) of the Planning and Compulsory Purchase Act 2004 (“2004 Act”) to challenge, the planning inspector’s approval of, and the appellant’s adoption of, the Solihull Local Plan (“the SLP”).

Neither the SLP nor the inspector had provided any OAN. On the contrary the appellant said it was not necessary for a plan to identify such a figure.

The inspector had concluded: “Taking account of all the evidence and having examined all the elements that go into making an objective assessment of housing requirements, a total level of 11,000 dwellings or 500 dwellings/year represents an effective, justified and soundly based figure which would meet the current identified housing needs of the district over the plan period and, with the agreed amendments, is consistent with the overall requirements of national policy in the NPPF.”

The Council had not for its part proposed an OAN. The Court of Appeal said it was apparent from the inspector’s use of the words “consistent with the overall requirements of national policy in the NPPF” that the 11,000 was very plainly a “policy-on” figure, not an OAN within the meaning of NPPF paragraph 47.

The court attached weight to the judge at first instance’s findings that:

“When the [inspector’s] report is read as a whole, far from full objectively assessed housing need being a driver in terms of the housing requirement target – as the NPPF requires – it is at best a back-seat passenger. Nowhere is the full housing need in fact objectively assessed…..”

Neither the appellant council proposing the SLP nor the inspector recommending its adoption undertook an OAN as a separate exercise to prior to considering how other policies impacted on the housing need.

So the process by which the inspector came to recommend the adoption of the SLP did not meet the requirements of the NPPF. Neither the appellant council nor the inspector had undertaken or proposed the “two-step approach” which NPPF required and so the process and the recommendation were flawed by error of law.

The court had wide powers under s.113(7) of the 2004 Act. It could:

– quash the SLP;
– remit the case for re-examination by another inspector; or
– remit it to the appellant council for reconsideration by them in light of the Court of Appeal’s judgment.

The court did not consider that the legal flaws in the SLP could be cured simply by a further examination before a different inspector. The appellant council needed to “think again”. But it was not necessary to quash the SLP.

The court ordered the parts of the SLP tabulated in the schedule to the previous judge’s order to be remitted to the council requiring it to reconsider the proposed SLP in light of the court’s judgment and to fix the illegalities in their earlier preparatory work.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Neighbourhood plan could allocate housing even if there was no strategic development plan

The Localism Act 2011 amended planning legislation to introduce parish councils or neighbourhood forums initiating neighbourhood development plans. Neighbourhood development plans must be independently examined, and if recommended, with or without modification, are submitted to a referendum. If more than half of the votes favour the plan, the local planning authority must put the neighbourhood development plan in place.

Is it permissible for a neighbourhood plan to include policies relating to a settlement boundary or the allocation of sites for housing if the local planning authority has yet to adopt a development plan document containing strategic policies for meeting the objectively assessed housing needs of the district?

Condition 8(2)(d) of Schedule 4B to the Town and Country Planning Act 1990 (“the 1990 Act”) requires that the making of the neighbourhood development plan “will contribute to the achievement of sustainable development”.

In the Planning Court case of Gladman Developments Ltd, R (on the application of) v Aylesbury Vale District Council & Anor [2014] Aylesbury Vale District Council (“the Council”) had made the Winslow Neighbourhood Plan (“the Neighbourhood Plan”). Policy 2 of the Neighbourhood Plan established a settlement boundary and provided that development outside the settlement boundary would only be allowed in exceptional circumstances. Within the settlement boundary, Policy 3 allocated land for sites for an indicative number of 455 new dwellings.

The claimant wished to develop three sites in the Winslow neighbourhood area outside the settlement boundary and sought judicial review of the Neighbourhood Plan.

The Council as yet had no adopted development plan document in place dealing with strategic housing issues because its draft Vale of Aylesbury Plan (“the Vale Plan”) had been rejected by the planning examiner and resolved to be withdrawn because the Council needed to better co-operate with other relevant authorities to fix the level of housing provision needing to be identified in the document. For Winslow it had only identified 400 houses.

The Planning Court ruled that a neighbourhood development plan may include policies for housing land, and direct where any proposed number of new dwellings are to be located, even where there was at present no development plan document setting out strategic polices for housing.

The examiner was therefore entitled in the present case to conclude that the Neighbourhood Plan satisfied basic condition 8(2)(e) of Schedule 4B to the 1990 Act as it conformed to such strategic policies as were contained in development plan documents even though the local planning authority had yet to adopt a development plan document containing strategic polices for housing.

The condition 8(2)(d) of Schedule 4B to the 1990 Act was satisfied. The examiner was entitled to conclude that a neighbourhood plan that provided for an additional 455 dwellings, in appropriate locations contributed to sustainable development even if:

– others wanted more growth and

– development plan documents in future might provide for additional growth.

Even if there might, in future, be a need for further growth, the examiner was entitled to think that it was appropriate to make the Neighbourhood Plan in the light of national guidance and advice, including the National Planning Policy Framework.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Localism’s duty to cooperate ends at Plan’s submission for examination

In the Planning Court case of Samuel Smith Old Brewery (Tadcaster) v Selby District Council [2014] Samuel Smith Old Brewery (Tadcaster) (“SSOBT”) sought to quash the adoption of a Submission Draft Core Strategy (“the SDCS”) which was part of Selby District Council’s Local Development Framework. Selby District Council had adopted the SDCS under s113 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). SSOBT challenged the SDCS on several grounds. Mainly SSOBT said Selby District Council had failed to comply with the duty to co-operate under Section 33A of the 2004 Act. Selby District Council denied being bound by that duty in the circumstances.

Section 33A was introduced by the Coalition Government’s “localism” initiative.

The court agreed that there was an issue over the distribution of housing in part of Selby District Council’s area and in Tadcaster in particular but it was not an issue which required Selby District Council to cooperate with another local authority (i.e. Leeds or York) to resolve since there could be no issue of Selby District taking more of those authorities’ housing.

Whether Selby District Council’s housing need should be met in those neighbouring local authority areas was not at issue either. In any event that would have been an issue invoking those authorities’ statutory duty to cooperate with Selby rather than vice versa.

Not surprisingly no neighbouring local authority had complained of a want of co-operation by Selby District Council.

Whether Selby were in breach of the duty to co-operate was in fact irrelevant. It would not have changed the result.

SSOBT’s complaint related to the distribution of housing within Selby District Council’s own area which could not have been the subject of any duty to cooperate with another authority.

Furthermore SSOBT could not allege that the duty to co-operate in Section 33A of the 2004 Act applied after the conclusion of the plan preparation stage.

Where a plan was submitted for examination by a Planning Inspector the examination may be suspended to enable further work to it by the Council. The work in question may be of a type which would have been subject to the duty of cooperation had it been done during the period in which the Council were preparing the plan for submission to public examination.

The fact that that had happened here did not mean that any duty of cooperation that would have applied to the period of preparation had revived. Its being done after the plan’s submission for public examination meant no such duty of co-operation could apply to that further work.

The effect of the suspension here had not been to remove the plan from the scope of public examination. It was still in the examination phase, under the control of the Inspector as to timing, procedure and substance.

SSBOT failed also on its other 5 grounds of challenge.

In Samuel Smith Old Brewery (Tadcaster) v Selby District Council [2015] SSBOT appealed to the Court of Appeal but the Court of Appeal upheld the decision of the High Court.

There was no provision in the statutory scheme that required an inspector to determine whether, in preparing and promoting modifications during the examination of the submitted plan or in an adjournment or suspension of that examination, the planning authority had complied with any duty to co-operate.

Subsections (5)(a) and (7B)(b), called for the inspector to consider whether the authority complied with any duty to co-operate only “in relation to [the plan’s] preparation”. Had Parliament intended the section 33A duty to apply in relation to any additional work by the local planning authority to support a request for modification of the plan under subsection (7C), it would have made no sense to exclude compliance with such duty from scrutiny by the inspector under subsection (7C).

That was a clear indication that the duty to co-operate applies, and only applies, to the stage of the plan-making process that is properly to be regarded as plan preparation under section 19, that is to say, the stage prior to the plan being submitted for examination.

The duty to cooperate did not subsist during the examination stage, nor does it revive if the examination is adjourned or suspended for main modifications to be produced and presented to the inspector, so that the inspector can conclude whether the plan, so modified, meets the statutory requirements in section 20(5)(a) and is sound. The other relevant provisions of the statutory scheme were all to the same effect.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

#HS2 Safeguarding Directions did not trigger SEA Assessment

The Planning Court case of HS2 Action Alliance Ltd & Anor, R (on the application of) v Secretary of State for Transport & Anor [2014] was a claim for judicial review by HS2 Action Alliance and the London Borough of Hillingdon Council, who said that the defendant, the Secretary of State for Transport (“the Secretary of State”), acted unlawfully when he used statutory powers to make safeguarding directions protecting the route for Phase 1 of HS2. Amongst other things they required High Speed Two (HS2) Limited (“HS2 Ltd.”) to be consulted on planning proposals affecting the route.

The claimants said that the safeguarding directions ought to have been previously assessed under the regime for strategic environmental assessment (“SEA”) in Directive 2001/42/EC “on the assessment of the effects of certain plans and programmes on the environment” (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA regulations”), and that the safeguarding directions were unlawful and should be quashed because of the Secretary of State’s failure to undertake such an assessment.

The claimants said that the safeguarding directions were a plan or programme within article 2(a) of the SEA Directive. They had been prepared for transport, town and country planning and land use, and so came within the ambit of article 3(2)(a).

The claimant said the safeguarding directions:

– set the framework for future development consent of projects;

– operated as a legal constraint on development consent being granted by local planning authorities for various projects;

– set criteria by which that legal constraint could affect decisions on applications for planning permission – that future development is proposed within the safeguarded area and does not fall within the specified categories of exempted development; and

– operated to constrain the Secretary of State’s discretion as to whether and how to restrict the grant of planning permission in cases passed on to him, because the requirement for the HS2 land would be a material consideration for him to take into account.

The court said that to qualify as a “framework” subject to SEA assessment, the safeguarding directions would have to be more than merely persuasive but guiding and telling because they had a stated role in the hierarchy of considerations to be taken into account by decision makers.

Similar previous litigation based on the failure to subject HS2’s 2012 Command Paper to SEA assessment failed in the Supreme Court because the 2012 Command Paper did not seek to place any further constraint on Parliament’s consideration of the environmental impacts of the project as a whole, under the hybrid Bill procedure. Also the Supreme Court had concluded that to qualify as a policy “framework” that needed prior SEA assessment the item:

“must operate as a constraint on the discretion of the authority charged with making the subsequent decision about development consent”. It “must at least limit the range of discretionary factors which can be taken into account in making that decision, or affect the weight to be attached to them”.

Here safeguarding directions were a consequence of the decision to promote the HS2 project.

They were foreseen by the 2012 Command Paper and were part of the process by which the HS2 project decision was proposed to be put into effect.

They were not a framework of policy or criteria constraining the discretion of the decision-maker in the making of the decision. It would be the HS2 project itself, as it was at the relevant time, which would inform:

– the response of HS2 Ltd. to consultation; and

– the intervention of the Secretary of State in the process, if he did intervene.

and it would not be the safeguarding directions that exerted a substantive influence on the decision, but the HS2 project itself.

So the safeguarding directions were not a plan or programme which set the framework for development consent, such as themselves to be subject to SEA assessment, but merely the servant of the HS2 Project which would itself have to pass environmental impact assessment (“EIA”).

The EIA for the HS2 project is having to comply with the requirements for an assessment prepared under the Annexes I and II to Directive 85/337/EEC and Article 1(4) of the EIA Directive (2011/92/EU).

In that assessment consideration would have to be given to the likely significant effects of the railway on the environment, including the use of the sites for use in its construction, and as to alternatives.

The authorities hosting the construction and operation of the railway, the owners of land affected by the project and also the public would have had the opportunity to participate in that process.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Challenge to Development Plan Document too late in process

Under the statutory scheme a Development Plan document (“DPD”) is submitted by a Local Planning Authority when it is of the view that the document is ready for independent examination.

The examination then occurs into the DPD which is under the control of a Planning Inspector throughout. If a Local Planning Authority request an Inspector to do so he must recommend modifications to the DPD to make it sound.

Section 23 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) deals with the question of adoption of local development documents. It provides,

“(2) The authority may adopt a development plan document as originally prepared if the person appointed to carry out the independent examination of the document recommends that the document as originally prepared is adopted.

(3) The authority may adopt a development plan document with modifications if the person appointed to carry out the independent examination of the document recommends the modifications.”

In the Planning Court case of IM Properties Development Ltd v Lichfield District Council & Ors [2014] the Lichfield Local Plan Development Strategy was undergoing the process of examination.

The Inspector had concluded that it would not be sound to adopt the plan as presented to him and so had recommended that modifications be carried out to enable it to meet the statutory requirements.

So, the process of examination was suspended whilst further work was being carried out on the main modifications for the Inspector to examine further when the examination process had resumed.

During the consultation period on the main modifications the claimant and first and second interested parties (both national builders) had all submitted further representations.

The Inspector may or may not be satisfied by the main modifications in the examination process. It followed that Lichfield had reached an integral part of an advanced local plan process.

The defendant, the first interested party and the second interested party all said that the claimant was barred by reason of section 113(2) of the 2004 Act.

Section 113 is headed ‘validity of strategies, plans and documents’ and the relevant parts say:

“(1). This section applies to-…

(c) a Development Plan document;

(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.

(3) A person aggrieved by relevant documents may make an application to the High Court on the ground that-

(a) The document is not within the appropriate powers;

(b) A procedural requirement has not been complied with.

(4) But the application must be made not later than the period of six weeks starting with the relevant date…

(11) Reference to the relevant date must be construed as follows-

(c) For the purposes of a Development Plan document (or a revision of it), the date when it is adopted by the Local Planning Authority or approached by the secretary of state (as the case may be);…”

The claimant contended that a Local planning authority resolution to adopt main modifications may be quashed firstly, through Section 113 and second by an application for judicial review. One did not exclude the other.

The claimant said that the submissions of the defendant, first interested party and second interested party were all predicated on the basis that the application was to quash a DPD. It was not. The claimant was seeking a quashing order of the main modifications.

However what was at issue were the main modifications which had been endorsed by the council within a local plan process approaching its end.

The court was not dealing with an early claim for judicial review testing the lawfulness of decision taking in the run up to a statutory process. Instead the court was dealing with a claim for judicial review taken during the statutory process. Far from saving time and expense that could add time and expense to the process then underway.

Although the claimant said it did not seek to question a document covered by Section 113, the claimant was actually seeking a quashing order of main modifications. If successful such a claim would abort the current plan making process when it was at an advanced stage.

That would lead to considerable delay and expense not only to the participants in that case but also to others who had made representations on the modifications which would be considered by the Inspector at the resumed examination.

The effect of a successful challenge would be to start that process off again: a re-making of main modifications, further consultation, further representations which would then be considered at a deferred examination.

Parliament had inserted the section 113 ouster in the statutory provision, precisely because of the potential chaos that could be caused by a successful challenge at that stage in the plan making process.

Once a document becomes a DPD within section 113 of the 2004 Act it must not be questioned in any legal proceedings except in so far as is provided by the other provisions of the section.

Sub-section (11)(c) makes it clear that for the purposes of a DPD or a revision of it the date when it is adopted by the Local Planning Authority is the relevant date from when time runs to bring a statutory challenge.

Once a document had been submitted for examination it is a DPD. The main modifications which have been proposed and which will be the subject of examination are potentially part of that DPD.

Any other interpretation would licence satellite litigation at an advanced stage of the Development Plan process.

The claimant’s suggestion that at such a stage the claimant had a choice whether to challenge by way of judicial review or to await the adoption and then challenge under Section 113 was invalid.

The claim was not one that can be lawfully brought by reason of the operation of Section 113(2).

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Early Housing Need Review Mechanism acceptable to make Planning Core Strategy Sound

If a local planning authority commits itself to an early review in which it will assess the full housing needs of it’s area and consider whether those needs can be met, can that authority lawfully adopt its core strategy, without a present assessment of those needs, on the basis that it has that commitment in it?

That was the question in the High Court case of Grand Union Investments Ltd v Dacorum Borough Council [2014].

Grand Union’s planning consultants, Savills, responded on its behalf to consultation on the draft core strategy. Ultimately they contended that, in the light of household projections, the core strategy should provide for the development of 563 dwellings a year, and a total of 14,080 for the plan period, and that the Council’s intended provision of 11,320 dwellings in the plan period would not meet the borough’s housing needs.

When the draft core strategy went for approval by the Government planning inspector he said there was insufficient substantive evidence to enable him to be confident that 11,320 dwellings represented a full objectively assessed need.

One of the options the inspector then suggested for the Council was “to commit to an early partial review of the [core strategy] (by way of an appropriate [main modification]), in order to investigate ways of assessing and meeting housing need more fully (taking into account up-dated household and population projections)”.

The Council accepted this suggestion and modified the core strategy accordingly.

Grand Union challenged the lawfulness of the core strategy as modified in this way.

The High Court ruled that the Council lawfully adopted the core strategy.

Testing the soundness of a plan was not the court’s task. That task was a matter of planning judgment. The court’s jurisdiction was limited to review on traditional public law grounds whether the Council’s adoption of the plan on the inspector’s recommendation was irrational.

Irrationality would require an unusually bad error of judgment. It must shown that the decision falls outside the range of judgment open to a reasonable decision-maker.

The inspector judged that the modification was a sufficient solution – proportionate to the problem. This was not an irrational view. It was entirely reasonable.

It was “pragmatic, rational and justified” and the reasons the inspector gave for those conclusions were not only adequate and clear, but make perfectly good sense. Another inspector might have come to a different view. But that did not mean that this inspector’s conclusion, formed on the evidence and representations he had heard, was bad as a matter of law.

The inspector neither neglected nor misunderstood any relevant part of Government planning policy. He clearly had regard to the principles in national policy relevant to the matters he had to consider.

So although the core strategy was reliant on an early review mechanism for determining housing need, Grand Union’s challenge to it’s lawfulness and sufficiency was rejected.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke planning advice in individual cases.

Public authority land allocated for recreational purposes not registrable as village green

Where land is provided and maintained by a local authority under section 12(1) of the Housing Act 1985 (“1985 Act”) or its statutory predecessors, is the use of that land by the public for recreational purposes “as of right” within the meaning of section 15(2)(a) of the Commons Act 2006 (“2006 Act”)?

The meaning of “as of right” is, the opposite of “of right” or “by right”.

If a person uses privately owned land “of right” or “by right”, the use will have been permitted by the landowner – so the use is rightful.

However, if the use of the land is “as of right”, it is without the permission of the landowner, and so is not “of right” or “by right”, but is actually carried on as though it were by right – and therefore “as of right”.

The interpolation of the small word “as” makes “as of right” effectively the opposite of “of right” or “by right”.

The law distinguishes between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand.

Use acquiesced in by the owner is ‘as of right’; acquiescence is the basis of prescription. But, use with the licence or permission of the owner is not ‘as of right.’

Permission involves some positive act or acts on the part of the owner.

On the other hand passive toleration is all that acquiescence requires.

In the recent Supreme Court case of Barkas, R (on the application of ) v North Yorkshire County Council & Anor [2014], Helredale playing field (“the Field”) was in Whitby, and owned by Scarborough Borough Council (“the Council”).

The Council laid out and maintained the Field as “recreation grounds” pursuant to section 80(1) of the Housing Act 1936, with the consent of the Minister as required by that section, the Housing Act 1957, and latterly section 12(1) of the 1985 Act.

Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the Field as a town or village green under section 15 of the 2006 Act.

The Supreme Court said so long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and so use the land “by right” and not as trespassers, so that no question of them using it “as of right” could arise.

Whether user was “as of right” should be judged by “how the matter would have appeared to the owner of the land”, which must be assessed objectively. Here a reasonable local authority in the position of the Council would have regarded the presence of the public, walking with or without dogs, taking part in sports, or letting their children play, as being an exercise of the public’s statutory right to be on the land and to use it for those activities: since the Field was being held and maintained by the Council for public recreation under section 12(1) of the 1985 Act and the Acts that preceded it.

Where a local, or other public, authority has lawfully allocated its land for public use (whether for a limited period or an indefinitely), it could scarcely be appropriate to infer that members of the public have been using the land “as of right”, simply because the authority had not objected to their using the land. To find the contrary would take very unusual and exceptional facts.

In such a cases, Parliament could hardly have intended that such land would become a village green just because the public had used it for twenty years.

Not only would the local authority not be expected to object to the public use: to have done so would have been positively inconsistent with their allocation decision.

A private owner, on the other hand, would be expected to protect his or her legal rights because he has no legal duty and no statutory power to allocate land for public use, and no ability to allocate land as a village green.

So the Helredale Neighbourhood Council’s appeal failed and the land was not registerable as a Town or Village Green.

This blog has been posted out of general interest It does not replace the need to get bespoke legal advice in individual cases.