People power - what’s wrong with neighbourhood plans
The problem this week’s Lochailort Investments case reveals with the law on neighbourhood plans.
The Localism Act’s reforms of the planning system have not been… how can we put this… an unmitigated success.
From revoking regional strategies (see the RTPI’s excellent April 2020 paper on the importance of more and better strategic planning), to the duty to cooperate (we touched last month on how well that’s turning out), to Assets of Community Value (some of the wooliest legislation in the business - I’ll return to ACVs in a future post).
Neighbourhood planning was the jewel in the crown of the 2011 reforms. At long last, Eric Pickles told us, there’d be “more people-planning and less politician-planning”.
So what are the problems? There are several, but if I had to pick one - it’s the low legal standard for neighbourhood plans to meet in order to pass their examinations.
Local plans are examined against the statutory test of “soundness”, expanded on in national policy (e.g. is the plan positively prepared, justified, effective and consistent with national policy). The soundness test has strong critics. It’s uncertain. It can bog the process down. It can be a soft touch. It can lead to awful over-complexity. But at the very least, it normally requires a pretty thorough (and sometimes an exhaustively thorough) examination and interrogation of the evidence supporting the plan.
A different story for neighbourhood plans (NPs). They’re only examined against 7 “basic conditions”. Not against the soundness tests. These basic conditions don’t even broadly resemble soundness criteria. 1 of the 7 - and the most frequently litigated - is the requirement that the NP is in “general conformity with the strategic policies contained in the development plan for the area”.
As the courts have emphasised time and again, this is a low bar:
Whether or not there is general conformity between an NP and a local plan is a broad question of planning judgment: DLA Delivery.
The court leaves a “broad ambit of legitimate planning judgment”, takes a “generous view” of the LPA’s powers in striking that judgment, and exercises “judicial caution” about interfering: Kebbell Developments.
The issue is whether the NP as a whole complies with the local plan as a whole - tension between individual policies isn’t a matter for the NP examiner: BDW.
The NP process is more limited and less investigative than a local plan examination: BDW.
There’s no need for an NP to be “sound”, or to meet objectively assessed needs: Crownhall.
One difficulty with lowering the bar like this arises when an NP progresses ahead of a local plan through the examination process.
Which leads us to this week’s Lochailort Investments case in the Planning Court. The Norton St Philip NP and the Mendip Local Plan were both examined in July 2019, and both tried to designate Local Green Spaces (LGS) - including 10 around Norton St Philip. In a nutshell:
In July 2019, the Norton St Philip NP examiner decided that designating 10 LGS met the “basic conditions”, but…
In September 2019, the Mendip Local Plan Inspector concluded that the overall approach to LGS was unsound. He emphasised that national policy sets a very high bar for designating local green spaces, that the designation should be used only sparingly, and that this high bar had not been cleared by the Council’s evidence. So either the LGS should all be deleted from the plan or the methodology should be revised and the examination suspended in the meantime.
Same policy designation. Some of the same sites. Some of the same arguments and evidence from Lochailort and from the Norton St Philip Parish Council. But two diametrically opposed conclusions.
How can that be? Of course, the NP examiner and the local plan inspector were considering different statutory tests at different levels of particularity - see those 5 headlines on the law above.
In the end, Mrs Justice Lang held that Mendip’s decision to allow the Norton St Philip NP to proceed to referendum wasn’t unlawful because, among other points, the statutory tasks of the two inspectors were different and the local plan report post-dated the NP report.
Looking beyond the outcome of that case, and the no-doubt-lovely green spaces of Norton St Philip, I think real question is whether the current state of the legislative scheme is even broadly acceptable. In particular:
How must it affect confidence in plan-making when two plan examiners can reach diametrically opposed views on an important issue like this within only a few months of one another?
Are all of the major evidential failures that the local plan inspector identified in Mendip’s evidence on LGS simply to be overlooked - at least so far as Norton St Philip is concerned?
And is this the tail wagging the dog - when we have the more limited, localised and less investigative process that is supposed to conform to the wider local plan taking precedence over and conflicting with the detailed conclusions of the local plan Inspector?
Another victory for the Localism Act 2011.
Stay well, #planoraks.
