In Sayers Common, the Secretary of State
dismissed an appeal despite his Inspector's recommendation to
allow it. He concluded that the proposal would conflict with the
Neighbourhood Plan, formally made after the Inspector's report.
Permission was refused as the proposal would conflict with a
requirement to enhance the existing settlement pattern, and was
considerably in excess of the 30-40 dwellings the Neighbourhood
Plan considered could be accommodated during the plan period.
However, this was quashed when Woodcock Holdings Limited
successfully challenged the decision, on the basis that the
Secretary of State had failed to identify the nature and extent of
the conflict with the Neighbourhood Plan, had not applied the
presumption in favour of sustainable development, the PPG guidance
(that permission would seldom be refused for a pre-examination
draft plan had not been complied with), and that the NPPF policy
regarding weight to be afforded to an emerging plan had not been
followed. The judgment did conclude that a neighbourhood plan could
come forward ahead of a Local Plan, but the legal challenge was
allowed on all grounds (see our
blog on the detail).
Back to the future
The planning application has been re-determined by the Secretary of State, who
again refused permission on the basis that it was not in accordance
with the Local Plan or the now-made Neighbourhood Plan, to which he
gave "careful consideration". He also gave the emerging
Local Plan "very limited weight", and reached the same
conclusions regarding conflict with the policies as before.
As discussed previously in relation to the DLA Delivery Limited case, which challenged a
Neighbourhood Plan prepared in accordance with an emerging local
plan (rather than the existing expired core strategy), there has
been debate on the treatment of Neighbourhood Plans which come
forward in the absence of an up to date Local Plan. Recent updates
to the Planning Policy Guidance clarifies the
Government's position where a Neighbourhood Plan comes forward
in advance of a new Local Plan. The Guidance states that:
Neighbourhood Plan policies "may become out of date,
for example if they conflict with policies in a Local Plan that is
adopted after the making of the neighbourhood plan. In such cases,
the more recent plan policy takes precedence".
communities may decide to update all or part of their
Neighbourhood Plans where they have become out of date, which will
require a fresh examination and referendum, putting a considerable
burden on Neighbourhood Plan steering groups.
The best way to avoid this is to ensure that Neighbourhood Plan
policies either do not interfere with meeting Objectively Assessed
Needs or, more difficult where there is no proper assessment of
needs on the table, that any restraint policies are consistent with
maintaining a 5 year housing land supply. The PPG update does not
suggest that a Neighbourhood Plan that is immediately out of date
at adoption – because its policies thwart a 5 year Housing
Land Supply – should be given more weight than the policy
imperative to maintain housing land supply and meet OAN.
In Woodcock Holdings the relevant parts
of the Neighbourhood Plan were held to be inconsistent with the
NPPF in this sense and so unlikely to survive either examination or
allow a finding of prematurity. The latest Sayers Common decision does not explain how an
out of date set of NP settlement policies could be given overriding
importance relative to national policy requirements in that
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