Lochailort Investments Ltd v Mendip DC [2020] EWCA 1259 – https://www.bailii.org/ew/cases/EWCA/Civ/2020/1259.html

“The legal framework

1. 1. Neighbourhood development plans were introduced by the Localism Act 2011 as part of a policy to give local communities a greater say in the development and growth of their local area. Hence a neighbourhood plan may be promoted by a number of different bodies other than the local planning authority, such as a parish council. A neighbourhood development plan is “a plan which sets out policies (however expressed)” relating to the use and development of land in the neighbourhood: Planning and Compulsory Purchase Act 2004, s 38A (2). Once adopted, a neighbourhood plan forms part of the statutory development plan. The main consequence of this is that any application for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise.

 

1. 1. Before it can be adopted, a draft neighbourhood development plan must be consulted upon, publicised, and submitted for examination by an examiner appointed by the local planning authority. It must then be put to a local referendum. The examiner must be independent and have appropriate qualifications and experience. One of the examiner’s tasks is to consider “whether the draft neighbourhood development order meets the basic conditions”: Town and Country Planning Act 1990 Sched 4B para 8 (1) (a) (“the TCPA”). Although this legislation refers to a neighbourhood development order, it applies equally to a neighbourhood development plan: Planning and Compulsory Purchase Act 2004 s 38A (3). The TCPA goes on to provide in Sched 4B para 8 (2):

 

“(2) A draft order meets the basic conditions if—

(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the order,

(b) having special regard to the desirability of preserving any listed building or its setting or any features of special architectural or historic interest that it possesses, it is appropriate to make the order,

(c) having special regard to the desirability of preserving or enhancing the character or appearance of any conservation area, it is appropriate to make the order,

(d) the making of the order contributes to the achievement of sustainable development,

(e) the making of the order is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area),

(f) the making of the order does not breach, and is otherwise compatible with, EU obligations, and

(g) prescribed conditions are met in relation to the order and prescribed matters have been complied with in connection with the proposal for the order.”

1. 1. The role of an examiner differs from that of an inspector considering a development plan document, such as a district development plan. This was explained by Holgate J in R (Maynard) v Chiltern DC [2015] EWHC 3817 (Admin). He pointed out at [13] (2):

 

“whereas … a local plan needs to be “consistent with national policy” an Examiner of a neighbourhood plan has a discretion to determine whether it is appropriate that the plan should proceed having regard to national policy. The limited role of an Examiner to have regard to national policy when considering a draft policy applicable to a small geographical area should not be confused with the more investigative scrutiny required by PCPA 2004 in order for an Inspector examining a draft Local Plan to determine whether such a plan is “sound”.” (Original emphasis)

1. 1. The examiner must produce a reasoned report to the local planning authority recommending (a) that the draft plan is submitted to a referendum, or (b) that modifications specified in the report are made to the draft plan and that the draft plan as modified is submitted to a referendum, or (c) that the proposal for the plan is refused. Once it has received the examiner’s report, the local planning authority must consider each of the recommendations and decide what action to take. The ultimate decision is that of the local planning authority, which may consider matters that have arisen since the examiner’s report. But if the local authority is satisfied that the draft plan (with or without any recommended modifications) meets the basic conditions and is compatible with Convention rights, a referendum on it must be held.

 

1. 1. As we have seen, a neighbourhood development plan must have regard to national policies and advice contained in guidance issued by the Secretary of State. A statutory requirement of this kind requires a decision maker not only to take national policies into account but also to observe them and depart from them only if there are clear reasons for doing so: Carpets of Worth Ltd v Wyre Forest DC (1991) 62 P & CR 334, 342; R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37 at [47]. Accordingly, although, as Holgate J rightly said, an examiner must decide whether it is appropriate for a plan to proceed having regard to national policy, a departure from that policy must be explained.

 

1. 1. As is well-settled, the interpretation of a planning policy is a question of law for the court. It is to be contrasted with the exercise of planning judgment: Tesco Stores Ltd v Dundee CC [2012] UKSC 13, [2012] PTSR 983. The exercise of planning judgment has been described as forbidden territory, into which the court may not stray: Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at [94].

 

National planning policy

1. 1. LGSs were introduced in response to a concern that areas of land were being registered as town or village greens otherwise than through the planning system. I described the process by which they were introduced in R (Cooper Estates Strategic Land Ltd) v Wiltshire Council [2019] EWCA Civ 840, [2019] PTSR 1980 at [4] to [10]. They were thus introduced into the National Planning Policy Framework (the “NPPF”) as a possible designation.

 

1. 1. The provisions of the NPPF that directly relate to LGSs are contained in paragraphs 99 to 101 which provide:

 

“99. The designation of land as Local Green Space through local and neighbourhood plans allows communities to identify and protect green areas of particular importance to them. Designating land as Local Green Space should be consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services. Local Green Spaces should only be designated when a plan is prepared or updated, and be capable of enduring beyond the end of the plan period.

100. The Local Green Space designation should only be used where the green space is:

a) in reasonably close proximity to the community it serves;

b) demonstrably special to a local community and holds a particular local significance, for example because of its beauty, historic significance, recreational value (including as a playing field), tranquillity or richness of its wildlife; and

c) local in character and is not an extensive tract of land.

101. Policies for managing development within a Local Green Space should be consistent with those for Green Belts.”

1. 1. The ordinary meaning of “consistent” is “agreeing or according in substance or form; congruous, compatible”. What this means, in my judgment, is that national planning policy provides that policies for managing land within an LGS should be substantially the same as policies for managing development within the Green Belt. Accordingly, because paragraph 101 aligns management of development within an LGS with management of development in the Green Belt, it is also necessary to refer to what the NPPF says about the latter. Paragraph 133 states:

 

“The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.”

1. 1. Paragraphs 135 and 136 deal with the establishment of new areas of Green Belt and the adjustment of their boundaries. Both paragraphs stress that this is to be done only in “exceptional circumstances”. The NPPF then goes on to deal with development in the Green Belt. Paragraphs 143 to 145 of the NPPF provide:

 

“143. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

144. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.

145. A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt. Exceptions to this are:

a) buildings for agriculture and forestry;

b) the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, outdoor recreation, cemeteries and burial grounds and allotments; as long as the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it;

c) the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

d) the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;

e) limited infilling in villages;

f) limited affordable housing for local community needs under policies set out in the development plan (including policies for rural exception sites); and

g) limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings), which would:

• not have a greater impact on the openness of the Green Belt than the existing development; or

• not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority.”

1. 1. Paragraph 146 describes other forms of development in the Green Belt that are not inappropriate. They include:

 

“material changes in the use of land (such as changes of use for outdoor sports…)”

1. It can thus be seen that national planning policy relating to the Green Belt permits any form of development where that is justified by very special circumstances; and it also describes as “not inappropriate” the various types of development described in paragraphs 145 and 146. Relevantly, those expressly mentioned types of development include the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, changes of use for outdoor sport, limited infilling in villages, and limited affordable housing for local communities. But even in those cases paragraph 144 requires that planning authorities give “substantial weight” to any harm to the Green Belt.”