Harrison Grant acts for successful appellant, Lochailort Investments Ltd, in challenge to "Local Green Space" policy in the Norton St Philip Neighbourhood Plan.
The Court of Appeal has today found that Mendip District Council's decision that the Norton St Philip Neighbourhood Plan ("NSPNP") met the basic conditions and could proceed to referendum was unlawful and should be quashed. The Court of Appeal allowed Lochailort Investments Ltd's appeal and overturned the decision of the High Court.
The case concerned the designation of land as Local Green Space ("LGS") in a neighbourhood plan. LGS is a policy designation similar to Green Belt intended to allow communities to identify and protect green areas of particular importance to them.
In order to designate land as a LGS, the tests set out in paragraphs 99-101 must be had regard to in accordance with the statutory basic conditions for making a neighbourhood plan which require, inter alia, a local planning authority to decide whether it is appropriate to make the neighbourhood plan having regard to national polcies and guidance issued by the Secretary of State's (Schedule 4B, para 8(2) of the Town and Country Planning Act 1990) primarily containine in the NPPF and PPG. Importantly, the NPPF states that policies for managing development within a Local Green Space should be consistent with those for Green Belts (NPPF para 101).
In this case, the policy for managing development within a LGS in the NSPNP stated "Development on Local Green Spaces will only be permitted if it enhances the original use and reasons for the designation of the space" ("Policy 5"). The Appellant argued that this was much more restrictive than policies for managing development in the Green Belt as there were no categories of appropriate development and there was no exception for development for which there are very special circumstances (c.f. NPPF paragraphs 144-145).
In allowing the appeal, the Court of Appeal (Lewison LJ giving judgment) held:
- The basic condition that a neighbourhood development plan must have regard to national policies and advice contained in guidance issued by the Secretary of State requires a decision maker not only to take national policies into account but also to observe them and depart from them only if there are clear reasons for doing so (para 6). In doing so, the Court applied the well-known principle set out in R (Khatun) v Newham LBC  EWCA Civ 55,  QB 37 at .
- When paragraph 101 of the NPPF says policies for managing development within LGS should be consistent with those for Green Belts, this means that national planning policy provides that policies for managing land within an LGS should be substantially the same as policies for managing development within the Green Belt. (para 10)
- Policy 5 in the NSPNP is more restrictive than national policies for managing development within the Green Belt and that means that it is not consistent with national Green Belt policy. Whilst the NPPF is a material consideration, not the law, if a neighbourhood plan departs from the NPPF it must be a reasoned departure. No reasons for the departure were given in this case. Indeed, the Court found there was a "gaping hole" in the reasoning. (paras 33-34) As a result, the LGS policy in the NSPNP did not meet the basic conditions and was unlawful (para 37).
On this basis, the Court quashed the Council's decision that the NSPNP met the basic conditions and could proceed to a referendum.
The Court of Appeal dismissed the other grounds of appeal which all concerned whether the land had been lawfully designated as LGS in accordance with the tests set out in paragraphs 99-100 of the NPPF.
The decision provides some welcome clarity on the protection that can be afforded to LGS in neighbourhood plans and reaffirms that Councils and Independent Examiners must pay particular regard to national policy in the NPPF in deciding whether a neighbourhood plan meets the basic conditions.The discretion to determine whether it is appropriate that the plan should proceed having regard to national policy in the basic conditions does not permit unjustified departures from national policy.
The case is also of interest as the High Court and Court of Appeal both granted interim injunctions restraining the Council from holding a referendum on the Neighbourhood Plan until the proceedings had been disposed of.