Whilst a local plan needs to be “consistent with national policy”, an Examiner’s function in relation to a Neighbourhood Plan is to determine whether the plan meets certain “basic conditions”.
The Examiner has a discretion to determine whether or not it is appropriate that the Neighburhood Plan should proceed “having regard to” National Planning Policy and guidance and has to make a judgment whether or not the Neighbourhood Plan is “in general conformity with the strategic policies contained in the development plan.
In BDW Trading Ltd (t/a Barratt Homes) & Anor v Cheshire West & Chester Borough Council & Ors the Claimants and the Second Interested Party (Taylor Wimpey) had each applied for planning permission in respect of three green-field sites on the edge of Tattenhall, within the area covered by the Tattenhall Neighbourhood Plan (“TNP”). Each application was recommended for approval, but each was refused by the Planning Committee of the First Defendant (“the Council”). Each was then appealed, under s.78 of the Town and Country Planning Act 1990 (“the 1990 Act”).
The Claimants challenged the decision of the Executive Committee of the Council to agree that the draft TNP, as amended to take account of the recommendations made by the Examiner, should be put to a referendum.
The local community gave a ringing endorsement to the TNP, with an overwhelming yes vote (905 votes to 38). The ballot produced a 51.8% turnout of the 1,822 qualifying voters.
Amongst the approved policyes was “to enable managed housing growth in the Parish:
Proposals involving up to 30 homes will be allowed within or immediately adjacent to the built up part of Tattenhall village over the period 2010 to 2030.” Certain exceptions would be made to the restriction
The Claimants said the Examiner failed to address the first Basic Condition – whether such a restrictive mechanism was appropriate in order to deliver the objectives of national guidance in the National Planning Policy Framework (“NPPF”), in particular under paragraph 47.
Further, by not considering the consequences of such a policy and its wider ramifications upon the delivery of housing the Examiner had failed to address or consider the fourth Basic Condition ((d)), namely whether the proposal “contributes to the achievement of sustainable development”.
Moreover the Examiner had wrongly concluded compliance with the fifth Basic Condition could be discharged solely by asking whether or not the proposal provided for housing delivery greater than that within the adopted development plan.
In fact there were no strategic housing policies within the Local Plan against which to judge the content of the TNP.
So the Claimants said the Examiner, and therefore the Council, had fundamentally misapplied the Basic Conditions. They also said that the 30 house limit in Policy 1 was promoted without a proper evidential base for doing so; and that the examination was not conducted in a manner which properly investigated the evidence for the policy or the consequences of adopting it.
The High Court said the criticisms made by the Claimants here failed to appreciate the limited role of the Examiner which was to assess whether the Basic Conditions had been met.
Condition (a) required the Examiner to have regard to national policies and then consider whether it was appropriate that the Plan should proceed.
Condition (d) required that “the making of the order contributed to the achievement of sustainable development”.
The Examiner considered both conditions and was entitled, on the evidence, to conclude that “Policy 1 met both conditions.
The only statutory requirement imposed by Condition (e) was that the Neighbourhood Plan as a whole should be in general conformity with the adopted Development Plan as a whole.
Whether or not there was any tension between one policy in the Neighbourhood Plan and one element of the eventual emerging Local Plan was not a matter for the Examiner to determine.
In fact, the parties were agreed that there was no current strategic housing policy in an adopted plan that set out the overall housing requirement or method of distribution of housing across the local authority area.
As regards the current adopted Local Plan the Council took the view that “The strategic planning of the area is more than just housing numbers.” Examples of strategic housing policies in the Chester District Local Plan with which the Neighbourhood Plan was in general conformity included policy ENV1 ‘Sustainable Development’ and policy HO3 ‘Affordable Housing’.
The Claimant’ submission that the Examiner should have considered the consequences of the 30 Houses Policy and “its wider ramifications upon the delivery of housing” was rejected by the court.
In the court’s viww that submission confused the limited role of the Examiner to have regard to national policy in considering a Policy only applicable to a small geographical area with the more investigative scrutiny of a local plan Inspector charged with determining whether the Local Plan as a whole was or was not “sound”.
The Council had been right to point to the numerous differences in the way in which a Neighbourhood Plan and a Local Plan are brought forward. Though, once a Neighbourhood Plan is “made” it will together with any local plan become part of the Development Plan for the area.
The making of a local plan is a complex exercise. It had to be submitted to the Secretary of State for examination by an independent inspector. Section 20 of the Planning and Compensation Act 2004 (“2004 Act”) required the Inspector to consider a number of matters including whether the plan was “sound”.
Neither were the Claimants right to say that the Examiner had to enquire properly into the justification for the promotion of a 30-dwelling limit.
That again, suggested a misunderstanding of a neighbourhood plan examiner’s role; he was not considering the matter in the way that an Inspector would when looking at whether a local plan is “sound”.
Indeed the Council itself had pointed out that there was no reason to think the TNP might not be consistent with the emerging development plan once it was adopted, whatever housing requirement was eventually settled upon. However if there was to be such a conflict the most recent plan would take precedence (s.38(5) of the 2004 Act).
The content of section 6 of the Examiner’s report, under the heading “Housing Growth” made it clear that he had properly considered and addressed the material points in relation to the 30-dwelling limit.
There had been no failure on the part of the Council to meet the Basic Conditions.
There was a proper evidential basis for the 30 houses policy which had been introduced by the Council after due consideration. The reasons for the retention of that policy had been adequately set out in the TNP and the Basic Conditions Statement and the Examiner’s Report.
This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.