Court ruling undermines emerging NPs

Following a recent judgment, the likelihood of refusing housing based on emerging NPs – when a council cannot prove a five-year land supply – is much reduced.

Trevor Ivory, head of the planning team at law firm DLA Piper, explains:

Q What are the implications of this ruling?

A While the decision provides some helpful guidance to planning authorities and developers, many will not be surprised by it. The biggest implications are for the new secretary of state, Greg Clark. We can expect to see a rowing back from recent appeal decisions that appeared to place unjustified weight on emerging NDPs (Neighbourhood Development Plans), showing more than a hint of pre-election posturing.

Following the judgment, the scope for refusing housing on the basis of conflict with emerging NDPs when a council cannot prove a five-year land supply is much reduced.

In particular, the limited nature of the examination required for NDPs, as compared to examinations into the soundness of local plans, means that many issues will not be fully scrutinised during the plan-making process. Where these issues are in play in the consideration of a particular development proposal, they will need to be scrutinised and determined on the basis that the NDP process will not do so.

Q What was the background to this case?

A Woodcock concerned refusal of an application for housing at Sayers Common in Mid Sussex. The local authority could not prove a five-year housing land supply. At the same time, the parish council was progressing an NDP.

The secretary of state refused the developer’s appeal, against his inspector’s recommendation, on the basis that the application was premature ahead of the emerging NDP (DCS Number 200-002-610). This decision was challenged in the High Court on a number of grounds, including its approach to prematurity.

Q What were the key points to emerge from this judgment?

A Mr Justice Holgate held that paragraph 49 of the NPPF applies to emerging local and neighbourhood plan policies as well as adopted ones. He found that the secretary of state had failed to apply paragraph 14 of the NPPG properly and had not identified how granting the appeal would predetermine issues that were central to the emerging plan.

In the judge’s opinion, the matters that the secretary of state found would be predetermined by allowing the appeal were outside the scope of an NDP examination and so could not support a finding of prematurity. Finally, he held that the relevant parts of the plan were unlikely to survive examination because of they were inconsistent with the NPPF and so would be unable to support a finding of prematurity.

Q What is prematurity and how can it affect planning decisions?

A Prematurity arises when an emerging policy cannot be given significant weight but granting planning permission would effectively predetermine the policy-making process. Paragraph 014 of the “Determining a planning application” section of National Planning Practice Guidance (NPPG) indicates that prematurity is unlikely to justify a refusal unless two criteria are met.

Firstly, the development proposed must be so substantial, or its effects so significant, that a grant of permission would undermine the plan-making process by predetermining the scale, location or phasing of new development central to the plan. Secondly, the plan must be at an “advanced” stage, in terms of a local plan’s submission for examination or the end of the council publicity period for a neighbourhood development plan (NDP).

Q How has the secretary of state interpreted prematurity in relation to NDPs?

A Recent appeals have highlighted tensions in situations where a local authority cannot prove a five-year housing land supply and a community is preparing an NDP. Triggering the presumption in favour of sustainable development set out in paragraph 49 of the National Planning Policy Framework (NPPF) can undermine an emerging NDP.

The secretary of state has recently refused several appeals on the basis that they are premature and would prejudice emerging NDPs. Inevitably, some of these decisions have been challenged in the courts, most recently in Woodcock Holdings v Secretary of State for Communities and Local Government. 

Q What were the key points to emerge from this judgment?

A Mr Justice Holgate held that paragraph 49 of the NPPF applies to emerging local and neighbourhood plan policies as well as adopted ones. He found that the secretary of state had failed to apply paragraph 14 of the NPPG properly and had not identified how granting the appeal would predetermine issues that were central to the emerging plan.

In the judge’s opinion, the matters that the secretary of state found would be predetermined by allowing the appeal were outside the scope of an NDP examination and so could not support a finding of prematurity. Finally, he held that the relevant parts of the plan were unlikely to survive examination because of they were inconsistent with the NPPF and so would be unable to support a finding of prematurity.

Q What were the key points to emerge from this judgment?

A Mr Justice Holgate held that paragraph 49 of the NPPF applies to emerging local and neighbourhood plan policies as well as adopted ones. He found that the secretary of state had failed to apply paragraph 14 of the NPPG properly and had not identified how granting the appeal would predetermine issues that were central to the emerging plan.

In the judge’s opinion, the matters that the secretary of state found would be predetermined by allowing the appeal were outside the scope of an NDP examination and so could not support a finding of prematurity. Finally, he held that the relevant parts of the plan were unlikely to survive examination because of they were inconsistent with the NPPF and so would be unable to support a finding of prematurity.

Q What is prematurity and how can it affect planning decisions?

A Prematurity arises when an emerging policy cannot be given significant weight but granting planning permission would effectively predetermine the policy-making process. Paragraph 014 of the “Determining a planning application” section of National Planning Practice Guidance (NPPG) indicates that prematurity is unlikely to justify a refusal unless two criteria are met.

Firstly, the development proposed must be so substantial, or its effects so significant, that a grant of permission would undermine the plan-making process by predetermining the scale, location or phasing of new development central to the plan. Secondly, the plan must be at an “advanced” stage, in terms of a local plan’s submission for examination or the end of the council publicity period for a neighbourhood development plan (NDP).

Q How has the secretary of state interpreted prematurity in relation to NDPs?

A Recent appeals have highlighted tensions in situations where a local authority cannot prove a five-year housing land supply and a community is preparing an NDP. Triggering the presumption in favour of sustainable development set out in paragraph 49 of the National Planning Policy Framework (NPPF) can undermine an emerging NDP.

The secretary of state has recently refused several appeals on the basis that they are premature and would prejudice emerging NDPs. Inevitably, some of these decisions have been challenged in the courts, most recently in Woodcock Holdings v Secretary of State for Communities and Local Government.

 

 

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