Neighbourhood Planning Workshop 30th January 2016

Neighbourhood Plans What can and can’t go into a plan ……..

30 January 2016

Bob Pritchard Principal Associate

Topics

• Case law on NDPs • Material planning considerations • Basic considerations • Importance of evidence base • The Slaugham experience • Questions to ask/pointers • Concluding thoughts

A health warning……

• Personal observations – not formal advice!

• Not official view of Eversheds

….and some words of encouragement

• “It's their place, Mac. They have a right to make of it what they can.”

……and some more words of encouragement

• “Neighbourhood plans may not propose less development than the local plan (or core strategy), but they can propose more homes or businesses or alternative sites or higher design standards for buildings and the public realm. In short they have an intensely local focus and can be as ambitious or modest as the community decides.” (LGA/PAS guidance)

Leeds NDSs

Neighbourhood Plans – Recent Case Law • Larkfleet Homes v Rutland CC [2015] • confirmed that specific sites can be allocated in neighbourhood plans • “It would indeed be very surprising if site allocation policies could not be included in them, since the location of housing is likely to be the single most important planning issue for a neighbourhood” (Richards LJ)

• Gladman v Aylesbury Vale DC [2014] • neighbourhood plan could include housing policies, even where there were no strategic policies to guide them

Neighbourhood Plans – Recent Case Law

• R (on the application of DLA Delivery Ltd) t) v Lewes District Council & Newick Parish Council [2015] • Claimant had site in emerging Local Plan - BUT not included in the NDP • Claimant argued NDP had to be in general conformity with the local plan – this was still in preparation.

• High Court - Permissible for an NDP to be made before the local plan had been adopted.

• BUT non-conformity with any future local plan policies could impact on weight to attach to NDP policies

What are Material Planning Considerations?

• General principles: • Courts decide if a consideration is material • Decision maker decides what weight is to be attached • Material considerations expand and evolve

What are Material Planning Considerations

• "In principle...any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances" (Stringer v MHLG 1971). Material considerations must be genuine planning considerations, i.e. they must be related to the development and use of land in the public interest. …..

• The Courts are the arbiters of what constitutes a material consideration. All the fundamental factors involved in land-use planning are included, such as the number, size, layout, siting, design and external appearance of buildings and the proposed means of access, together with landscaping, impact on the neighbourhood and the availability of infrastructure. ……….”

(Planning System General Principles - (now revoked))

What May Not Be Material Considerations

• Purely commercial interests/purely private interests – BUT seeking to retain significant local employer may be material • Matters regulated by other statutory codes – e.g. building regulations – no need to duplicate controls – BUT there may be an overlap of regimes • Loss of view – BUT impact on amenity can be a material planning consideration

Don’t Forget the Basic Conditions • having regard to national policies and advice contained in guidance issued by the Secretary of State it is appropriate to make the NDP • the making of the NDP contributes to the achievement of sustainable development.

• the making of the NDP 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).

• the making of the NDP does not breach, and is otherwise compatible with, EU obligations.

• prescribed conditions are met in relation to the NDP and prescribed matters have been complied with in connection with the proposal for the NDP.

Test of General Conformity

• Extent to which NDP supports and upholds the general principle that the strategic policy is concerned with • Degree of conflict between the draft NDP plan policy and the strategic policy • Does the NDP policy provide an additional level of detail and/or a distinct local approach to that set out in the strategic policy without undermining that policy • Rationale for the approach taken in the NDP and the evidence to justify that approach

Test of Sustainable Development

• Plan-making should help to achieve sustainable development.

• How will the NDP contribute to improvements in environmental, economic and social conditions?

• Has consideration been given to how any potential adverse effects arising from the proposals may be prevented, reduced or offset (referred to as mitigation measures).

• Sustainability Appraisal approach to NDP formulation is not essential but helpful

Other Legal Requirements

• Will the NDP have a significant effect on a European site (as defined in the Conservation of Habitats and Species Regulations 2012) or a European offshore marine site (as defined in the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007) (either alone or in combination with other plans or projects). • Is it compatible with other legal requirements e.g. human rights and equalities legislation.

Importance of Evidence Base

• PAS Guidance:• “While the evidence requirements are not as rigorous as those for an LPA in its plan making, the need for evidence to underpin a neighbourhood plan is important.

Neighbourhood groups should use evidence that is already in the public domain, along with evidence that they collect themselves, to prepare their plans.”

Objectively Assessed Housing Need

• PAS Guidance • “Neighbourhood Plans should support the strategic development needs set out in Local Plans, including policies for housing which will have been informed by the area's Objectively Assessed Housing Need. Where local planning authorities are in the process of preparing their Local Plan and collecting data on housing need it will be important for the neighbourhood planning groups and local authorities to work together and share evidence in order to develop consistent plans.”

The Slaugham NDP

Slaugham

• Examiner recommended NDP should not proceed to referendum:• Included site allocations that were not informed by SEA process • Evidence base did not support the number and distribution of dwellings • Consultation was flawed – consulted on options rather than on the final draft of the NDP

Some Questions to ask • Has engagement been proportionate to the scale and complexity of the plan?

• Has the plan been the subject of appropriate presubmission consultation and publicity?

• Are draft policies appropriately justified with a clear rationale?

• Are there any obvious conflicts with national/ local policy?

• Are there any issues around compatibility with human rights or EU obligations • is there a clear explanation of the ways the plan contributes to sustainable development?

• Are the draft policies clear/unambiguous and do they reflect the community’s aspirations?

Some Pointers

• Know your Local Plan – both in terms of policies and timing of production/review and engage with process compatibility will impact on:• demonstrating basic conditions are met • issues of weight to be attached to NDP

• What can better be achieved in NDP as opposed to in a local plan?

• Is an alternative approach preferable/ more achievable? (e.g. Supplementary Planning Document) • Is the evidence base available to support the approach?

• Does the NDP include a coherent vision which reflects the views and aspirations of the neighbourhood.

Policy Drafting

• " Je N'ai fait celle-ci plus longue que parceque je n'ai pas eu le loisir de la faire plus courte." Blaise Pascal - Lettres Provinciales (XVI)

Final Thoughts

• Essential point – neighbourhoods are in the driving seat • Scope for policies is potentially very wide • BUT – plan should :• • • • •

meet the basic conditions be evidence based articulate a clear vision reflect local requirements and circumstances be coherent

• Given the status of NDPs as part of the development plan – worth persevering!

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