Planning: the death of “interim planning guidance”?

Local planning authorities facing constant changes in legislation and national policy face practical difficulties keeping their local plans under review.

Local planning authorities have produced interim planning guidance to bridge the position between out-of-date development plans and new development plans being adopted.

Regulation 2 of Town and Country Planning (Local Planning) (England) Regulations 2012 (“the 2012 Regulations”) defines “local plan” as “any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b), and for the purposes of section 17(7)(a) of the [Planning and Compulsory Purchase Act 2004 (“the 2004 Act”)] these documents are prescribed as [Development Plan Documents (“DPDs”)].”

“Supplementary plan document” (“SPD”) means “any document of a description referred to in regulation 5 (except an adopted policies map or a statement of community involvement) which is not a local plan”.

Regulation 5 of the the 2012 Regulations defines Local Development Documents (“LDDs”):

“Local Development Documents

(1) For the purposes of section 17(7)(a) of the [2004 Act] the documents which are to be prepared as [LDDs] are –

(a) any document prepared by a local planning authority individually or in co-operation with one or more local planning authorities which contains statements regarding one or more of the following

(i) the development and use of land which the local planning authority wish to encourage during any specified period;

(ii) the allocation of sites for a particular development or use;

(iii) any environmental, social design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and

(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission.”

There is another category of LDD recognised by the courts, which the 2012 Regulations are silent about – the ‘residual LDD’.

The categorisation of these different types of documents governs how they will be developed:

– the DPDs/LDDs are to be tested through independent examination;
– SPDs must be formally consulted on; and
– residual LDDs have no procedural requirements.

In R (Miller Homes) v Leeds City Council [2014] the old adopted development plan said designated land should not be developed in the plan period but kept back to meet longer term requirements.

Leeds later produced interim guidance to set the guidelines for the release of safeguarded land.

The High Court said Leeds’ Interim Policy did not fall within regulation 5(1)(a)(iv) because the Interim Policy was not a development management policy: it was a safeguarding policy, rather than a policy which regulated the development or use of land. Thus, the statements in the Interim Policy were not “regulating a development management policy.”

Thus it was neither a DPD/Local Plan nor a SPD. It was a “residual LDD”.

In the recent case of Skipton Properties Ltd, R (On the Application Of) v Craven District Council [2017] the High Court said:

If the document in question contains statements within any of (i), (ii) or (iv) of regulation 5(1)(a) (above), it is a DPD.

“This is so even if it contains statements which, taken individually, would constitute it an SPD or a residual LDD. This conclusion flows from the wording “one or more of the following”, notwithstanding the conjunction “and” between (iii) and (iv).”

In the Skipton case the real question was therefore whether the Council’s Policy NAHC 2016 concerning affordable housing “contained development management policies which guide or regulate applications for planning permission.”

The issue here was not the same as under 2012 Regulation 5(1)(a)(i) because there was no need to find any encouragement; regulation 5(1)(a)(iv) above is neutral.

NAHC 2016 clearly contained statements, in the form of development management policies, which regulate applications for planning permission.

NAHC 2016 contained statements in the nature of policies which related to the development and use of land which the Council wished to encourage, pending the Council’s adoption of a new local plan which would include an affordable housing policy.

“The development and use of land is either “residential development including affordable housing” or “affordable housing”. It is an interim policy in the nature of a DPD. It should have been consulted on; [a Strategic Environmental Assessment] should have been carried out; it should have been submitted to the Secretary of State for independent examination.”

So the court quashed policy NAHC 2016.

In conclusion if any guidance fulfils the criteria for a DPD/Local Plan in the 2012 Regulations, it must be prepared as a DPD/Local Plan. Alternatively, it might be a SPD requiring to be prepared as a SPD.

The scope of Regulation 5(1)(a) of the 2012 Regulations is so wide as to pretty much rule out meaningful ‘residual LDDs’ to provide interim guidance.

The correct course for local authorities is to press on with the timely preparation of up-to-date local plans, and in the intervening period between draft and adoption, to deploy them as material considerations for the purpose of the rights and duties conferred by the 2004 Act.

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