Anyone who has looked closely at the Town & Country Planning (Local Planning) (England) Regulations 2012 (SI 2012/767) will know that its distinctions between the categories of LDDs (local development documents) that are DPDs/Local Plans and those that are SPDs are confusing and seemingly overlapping. Added to their opacity, the High Court has twice held that there is a further category of LDD, not mentioned in the Regulations at all, which is the 'residual LDD'. The distinction between these different types of LDD is important both because it covers both preparation requirements for the documents (DPDs/Local Plans must be tested through independent examination, SPDs must be subject to formal consultation, but residual LDDs have no procedural requirements) and the weight they can subsequently carry in decision making (only DPDs/Local Plans will, of course, benefit from the statutory presumption in s.38(6) Planning & Compulsory Purchase Act 2004).
In R (Miller Homes) v Leeds City Council  EWHC 82 (Admin) Stewart J held that the category of residual LDDs was wide enough to embrace interim guidance that Leeds had produced to set the criteria for the release of safeguarded land which the out-of-date adopted development plan said should not be developed in the plan period but reserved to meet longer term needs. Stewart J held that such interim guidance, which Leeds had produced as its response to the NPPF and an acute shortage of housing land, was neither a DPD/Local Plan nor a SPD. As a consequence, the production of interim planning guidance, to fill the gap between out-of-date development plans and the adoption of new up-to-date development plans, has been a common feature in many local planning authority areas, in London (e.g. Hackney, Southwark, and Tower Hamlets) and elsewhere (e.g. Cambridge, Cheshire East, Darlington, and Northampton).
However, in a case decided in the High Court on Monday 20 March 2017 Mr Justice Jay has held that there is no lawful role for interim planning guidance where its subject matter falls within any of the categories of documents that under the 2012 Regulations must be prepared as either DPDs/Local Plans or SPDs. In R (Skipton Properties Ltd) v Craven District Council  EWHC 534 (Admin) the Council had been operating since 2007 without a 'saved' policy on affordable housing. To fill the gap during the lengthy gestation of their new local plan, the Council had periodically adopted and published interim guidance, setting out the approach that would be taken to securing affordable housing contributions from new residential development. The most recent version of the guidance was published in August 2016. This differed from previous versions by reflecting the Written Ministerial Statement on contributions from small sites and vacant building credit, in the wake of the Court of Appeal decision in R (West Berkshire District Council) v SSCLG  EWCA Civ 441. However, the guidance replaced the previous version in its entirety (albeit carrying forward the bulk of the earlier text).
The new guidance was challenged by a local house builder, Skipton Properties Ltd, on the basis that in substance the guidance was dealing with a matter that needed to be in a DPD, and so it should have been prepared as such, and failing that it was a matter for a SPD, and in either case it needed to be subject to strategic environmental assessment (SEA). The Council disputed that the guidance was either a DPD or a SPD but conceded that if it was a DPD then it would need to be subject to SEA. The Council argued that its document was interim guidance which did not have the status of policy and simply dealt with the approach it would take to affordable housing contributions whilst its new local plan was in preparation.
Mr Justice Jay upheld the challenge and quashed the guidance on the basis that, having regard to its content, the subject matter did fall within the categories in Regulation 5(1)(a) of the 2012 Regulations that could only be prepared as DPDs/Local Plans. He said that this was an objective test to be determined by the Court and could not be avoided by the Council calling their guidance an 'approach' or by stating that it was not 'policy'. He also rejected the alternative position that the guidance could be a SPD and therefore did not need to decide whether a SPD had to undergo SEA. Mr Justice Jay found that the guidance covered 'development and use of land' that the Council wished to 'encourage' (being either affordable housing or residential development including affordable housing) and so fell within Regulation 5(1)(a)(i), and/or it was guidance which set out 'development management policies' that would be used to determine planning applications and so fell within Regulation 5(1)(a)(iv). He rejected the view expressed in R (RWE Npower) v Milton Keynes Borough Council  EWHC 751 that 'development management policies' had to be general rather than particular in their ambit. By implication (although not expressly) he rejected the conclusion in Miller that interim guidance could be prepared to regulate the release of land for development outside of the DPD process.
Mr Justice Jay recognised that local planning authorities did face practical difficulties in keeping development plans up-to-date in the face of continual changes of national policy and legislation. However, he suggested that the remedy was for local planning authorities to be expeditious in plan-preparation and that in the interregnum they should deploy emerging draft plans as material considerations.
The message for plan-makers is clear: if any of the subject matter of guidance meets the definition for a DPD/Local Plan in the 2012 Regulations, it must be prepared as such. This is an objective test. If it is not a DPD/Local Plan, it might be a SPD (applying the same objective test) and if it is, it must be prepared as SPD. Given the breadth of the definitions in Regulation 5(1)(a) of the 2012 Regulations, it is therefore very hard to see that there is still any role for meaningful interim guidance to be prepared outside of the 2012 Regulations as some form of 'residual LDD'. To what extent draft versions of such DPDs/SPDs will be regarded as weighty material considerations, taking note of the advice in paragraph 216 of the NPPF, is a matter that will no doubt be played out further as the implications of the judgment are absorbed by decision makers.
Michael Bedford QC acted for Craven District Council. Click here to view the judgment.