Neighbourhood Plans: Challenging the unchallengeable

October 2020 has brought the rarest of things, a successful challenge to a neighbourhood plan. So far around 910 plans have been adopted but very few have been successfully challenged in the courts[1]. This is no doubt because the Courts have been scrupulous to recognise the limited role of an examiner of a neighbourhood plan-emphasising that the examiner only needs to decide whether the ‘basic conditions’ are met rather than examining the plan against the more challenging soundness test which local plans have to meet.

The considerable leeway the Courts have given in relation to neighbourhood plan challenges is not inexhaustible. In R (oao Lochailort Investments Limited) v Mendip District Council the Court of Appeal grappled with a challenge to the making of the Norton St Philip Neighbourhood Plan (“NSPNP”). Policy 5 of the NSPNP designated some ten sites as local green space (“LGS”) and provided that development would only be permitted on these LGS if it “enhances the original use and reason for designation of the space”. Two of the proposed LGS were owned by Lochailort Investments Ltd. When the local authority concluded that the NSPNP could proceed to referendum, Lochailort (represented by Richard Ground QC and Ben Du Feu of Cornerstone Barristers) stepped in to challenge the plan.

The basis for the main ground of challenge was that the NPPF at paragraph 101 provides that “Policies for managing development within a Local Green Space should be consistent with those for Green Belts.” The provisions of the NPPF are of significance because one of the basic conditions that must be met for a neighbourhood plan to be made is that it is appropriate to make the plan “having regard to national policies and advice”, (a lesser test than for the making of a local plan which requires a plan to be “consistent with national policy” in order to be found sound).

Lochailort argued that in requiring that development ‘enhance the original use and reason for designation of the space’ policy 5 was not consistent with the policies for managing green belts in the NPPF. The Court accepted that this formulation was more restrictive than national policies for managing the green belt and therefore did not comply with the NPPF. This was not fatal but if the NSPNP were to depart from national policy in this way it was necessary to show not only that regard had been had to the national policy, but that reasoning was given that would permit a departure from the national policy. The Court noted that no such reasons were given and there was a “gaping hole in the reasoning” in this respect.

This decision shows the limits of the discretion given to those developing neighbourhood plans. In developing those plans national policy will have to be properly understood and either followed, or reasons will have to be given for departure from the national policy. Any reasons given for departing from national policy will be scrutinised in line with the other basic conditions for making a neighbourhood plan, including whether the plan ‘contributes to the achievement of sustainable development’ and is in ‘general conformity’ with the local plan.

In this case the judge in the High Court who rejected Lochailort’s challenge had been prepared to accept that the approach taken was within the limits of the examiner’s planning judgement. While the courts have been astute to respect the planning judgement of decision makers, and the Court accepted that on any individual planning application whether a development complied with the green belt policies was a matter of planning judgment, there was still a question of interpretation as to whether the proposed policy was consistent with national green belt policies and an absence of reasoning on that point. An appeal to planning judgement did not cure that error.  

In other respects Lochailort were not successful in their challenge. The Court confirmed that an examiner of a neighbourhood plan can (but not necessarily will) benefit from the observations in Hopkins Homes that the courts should respect the expertise of planning inspectors and at least start from the presumption that they have understood policy correctly. As the Court emphasised that presumption is not irrebuttable and it does not allow the courts to ignore legal errors where they do exist.

Against this background the Court were not prepared to accept the examiner had fallen into error in considering whether the LGS designations were ‘capable of enduring beyond the plan period’. Although this phrase was not specifically considered the examiner had accepted that the LGS sites were not suitable for development and had accepted that there was land available for development elsewhere. This reasoning was sufficient, particularly where the test was not as high as the test in relation to the green belt where boundaries should only be changed in exceptional circumstances.

The Court also accepted that although the neighbourhood plan had proceeded in part on a misinterpretation of the local plan, this misinterpretation was not a material one. 

This decision is unlikely to open the floodgates to legal challenges to neighbourhood plans. The legal regime, including the limited role of the examiner, remains intact. Those preparing and challenging neighbourhood plans will, however, need to be astute to examine whether national policy has been followed and if not whether reasons have been given. Where there is a simple lack of reasoning on this point an appeal to an examiner’s expertise or planning judgement will not cure the error.

Clare Parry

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