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(iii) If a neighbourhood plan (or one or more of its policies) gets out of date, that could be a material consideration justifying that plan being departed from and planning permission for development being granted in breach of those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