Neighbourhood Planning

Transcription

1 Neighbourhood Planning The Minister has said that the schedule is not about stopping development. He has said that neighbourhood plans must be in general conformity with local strategic plans, and he has said that neighbourhood plans can only go beyond, not below, housing needs identified in the local strategic plan. The Minister of State, Department for Communities and Local Government (Greg Clark) indicated assent. The right hon. Gentleman is nodding, but does he really think that people will come forward to put a neighbourhood plan together because they want more homes built in their area? Does he really think that? Perhaps they will in Tunbridge Wells. If so, that is great. I shall get the train back to Lewisham and say to everyone, Brilliant, the right hon. Member for Tunbridge Wells has told us that all the homes will be built down there. We can all go and live in Tunbridge Wells. I do not believe that will happen. That is the real problem with the Bill. 2 Introduction has been a transformative year for Neighbourhood Planning. In September 2013, few could have predicted that this topic could expand to fill a full paper. Few would doubt that by September 2015 there will be more than enough material for a complete seminar. 2. Neighbourhood planning has become one of the most important issues in land use planning today. It sits at the epicentre of the seismic tension between Localism and the national policy imperative of significantly boosting the supply of housing. Neighbourhood planning is built upon a body of new legislation and policy whose drafting contains the obscurity of difficult earlier Parliamentary compromise. It has therefore now been the subject of reasons for refusal by numerous local planning authorities, which have had to be argued out at many section 78 appeals this year, and the subject of a number of legal challenges to the plans themselves. 2 Heidi Alexander MP (Lewisham) Localism Bill, Committee Debate, 17th sitting: House of Commons 1 March, 2011, column 678 (1), considering what was due to become Schedule 4B of the Town and Country Planning Act 1990: 1

2 3. This paper considers the key events which have occurred since January It also looks ahead to the future up to December 2014, when several cases are due to be heard before the High Court. For a practical overview of the development of neighbourhood planning across the UK, the best work has been produced by DCLG, consultants and the press. 3 We will therefore begin by summarising the legislative framework, considering the origins of neighbourhood planning under the Localism Act 2011, and then singling out the following five key decisions: (1) The Tattenhall Neighbourhood Plan and R (BDW Trading Ltd) v Cheshire West and Chester Council [2014] EWHC 1578 (Admin) (2) The Slaugham Neighbourhood Plan and APP/D3830/A/13/ and Land at Handcross, West Sussex (3) The Broughton Astley Neighbourhood Plan and CO/2468/2014 R (Crane) v Secretary of State for Communities and Local Government (4) The Winslow Neighbourhood Plan: CO/3104/2014 R (Gladman) v Aylesbury Vale District Council (5) The Hurstpierpoint and Sayers Common Neighbourhood Plan: APP/D3830/A/12/ : Land At Kingsland Laines, Reeds Lane/London Road, Sayers Common, West Sussex Legislative Framework 4. Section 70(2) of the Town and Country Planning Act 1990 provides that: (2) In dealing with such an application the authority shall have regard to (a) the provisions of the development plan, so far as material to the application, 3 See notably DCLG s regular Notes on Neighbourhood Planning, Turley Associates,Neighbourhood Planning Plan and Deliver? (March 2014) and Planning Magazine s Neighbourhood Watch. 2

3 5. Section 38 ( Development plan ) of the Planning and Compulsory Purchase Act 2004 provides (so far as relevant): (1) A reference to the development plan in any enactment mentioned in subsection (7) must be construed in accordance with subsections (2) to (5). (3) For the purposes of any other area in England the development plan is (b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area, and (c) the neighbourhood development plans which have been made in relation to that area. (5) If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be). (6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. (9) Development plan document must be construed in accordance with section 37(3). 6. Section 37(3) ( Interpretation ) PCPA provides that: (3) A development plan document is a local development document which is specified as a development plan document in the local development scheme. Section 15(2) defines the requirement of the local development scheme including: (aa) the local development documents which are to be development plan documents; 7. Section 17 ( Local development documents ) PCPA provides (again so far as relevant): 3

4 (3) The local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area. (5) If to any extent a policy set out in a local development document conflicts with any other statement or information in the document the conflict must be resolved in favour of the policy. (7) Regulations under this section may prescribe (za) which descriptions of documents are, or if prepared are, to be prepared as local development documents; (a) which descriptions of local development documents are development plan documents; 8. The Regulations referred to above are the Town and Country Planning (Local Planning) (England) Regulations 2012, and specifically Regulation 5: (1) For the purposes of section 17(7)(za) 1 of the Act the documents which are to be prepared as local development documents are (a) any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities, which contains statements regarding one or more of the following (i) the development and use of land which the local planning authority wish to encourage during any specified period; (ii) the allocation of sites for a particular type of development or use; (iii) any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and (iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission; (b) where a document mentioned in sub-paragraph (a) contains policies applying to sites or areas by reference to an Ordnance Survey map, any map which accompanies that document and 4

5 which shows how the adopted policies map would be amended by the document, if it were adopted. (2) For the purposes of section 17(7)(za) of the Act the documents which, if prepared, are to be prepared as local development documents are (a) any document which (i) relates only to part of the area of the local planning authority; (ii) identifies that area as an area of significant change or special conservation; and (iii) contains the local planning authority's policies in relation to the area; and (b) any other document which includes a site allocation policy. 9. Under sections 19, 20 and 23 PCPA, all development plan documents are subject to wide-ranging preparation requirements, and must be submitted to the Secretary of State for independent examination and recommendation by the appointed inspector, prior to adoption. 10. Section 38A ( Meaning of neighbourhood development plan ) PCPA provides: (1) Any qualifying body is entitled to initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development plan. (2) A neighbourhood development plan is a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan. (3) Schedule 4B to the principal Act, which makes provision about the process for the making of neighbourhood development orders, including (a) provision for independent examination of orders proposed by qualifying bodies, and 5

6 (b) provision for the holding of referendums on orders proposed by those bodies, is to apply in relation to neighbourhood development plans (subject to the modifications set out in section 38C(5) of this Act). (4) A local planning authority to whom a proposal for the making of a neighbourhood development plan has been made (a) must make a neighbourhood development plan to which the proposal relates if in each applicable referendum under that Schedule (as so applied) more than half of those voting have voted in favour of the plan, and (b) if paragraph (a) applies, must make the plan as soon as reasonably practicable after the referendum is held. (6) The authority are not to be subject to the duty under subsection (4)(a) if they consider that the making of the plan would breach, or would otherwise be incompatible with, any EU obligation or any of the Convention rights (within the meaning of the Human Rights Act 1998). (7) Regulations made by the Secretary of State may make provision as to the procedure to be followed by local planning authorities in cases where they act under subsection (6). (12) For the purposes of this section local planning authority has the same meaning as it has in Part 2 (see section 37), but the Broads Authority are to be the only local planning authority for the Broads, neighbourhood area has the meaning given by sections 61G and 61I(1) of the principal Act, prescribed means prescribed by regulations made by the Secretary of State, and 6

7 qualifying body means a parish council, or an organisation or body designated as a neighbourhood forum, authorised for the purposes of a neighbourhood development plan to act in relation to a neighbourhood area as a result of section 61F of the principal Act, as applied by section 38C of this Act. 11. Section 38C(2) PCPA provides that a range of added provisions within Part III TCPA, Sections 61F-N, apply to neighbourhood plans and 38C(5), by reference to section 61E confirms that Schedule 4B TCPA makes provision about the process for the making of neighbourhood development plans, including (a) provision for independent examination of orders proposed by qualifying bodies, and (b) provision for the holding of referendums. Schedule 4B, paragraph 7-11 sets out the requirements for independent examination. 12. In short, Schedule 4B of the Town and Country Planning Act 1990 ( the 1990 Act ) entitles a qualifying body to submit a proposal to a local planning authority for the making of a neighbourhood plan. Existing parish councils will generally qualify automatically, and the exceptions where the qualifying body is disputed are beyond the scope of this paper. 13. There are procedural requirements which must be complied with before proposals for a neighbourhood plan may be submitted to the local planning authority or fall to be considered by a local planning authority (these are set out in part 5 of the Neighbourhood Planning (General) Regulations 2012). 14. The powers of a local planning authority to decline to consider a proposal for a neighbourhood plan are limited (see schedule 4B paragraphs 5 and 6). They are restricted primarily to ensuring that the procedural requirements have been followed, that the body qualifies as a qualifying body and that the application is not a repeat application. Provided that these requirements are complied with, the local planning authority must submit the draft neighbourhood plan for independent examination. However, that does not remove from the local planning authority the responsibility of assisting and scrutinising draft and consultation versions itself, given that it will ultimately be the defendant to any judicial review proceedings. 7

8 15. Paragraph 8 of Schedule 4B provides that it is for the independent examiner to consider whether, inter alia, the neighbourhood plan meets the basic conditions. These are set out in paragraph 8 (2), which provides (insofar as relevant for the purposes of this paper) that a draft neighbourhood plan meets the basic conditions if: (a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the plan; (d) the making of the plan contributes to the achievement of sustainable development; (e) the making of the plan is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area) (f) the making of the order does not breach, and is otherwise compatible with, EU obligations, 16. Paragraph 10 provides that the independent examiner must prepare a report that must recommend either that the draft plan is submitted to a referendum, or that modifications are made and that the plan as modified is submitted to a referendum, or that the proposal for a plan is refused. The Examiner has the power to recommend modifications that will ensure that the plan meets the basic conditions; he must not recommend the plan to be submitted to a referendum if the basic conditions are not met. 17. Thereafter, the local planning authority must consider the recommendations of the independent examiner, and if it is satisfied that the basic conditions are 8

9 met, a referendum must be held on the making by the authority of a neighbourhood development plan (schedule 4B, paragraph 12). 18. A legal challenge may be brought only to the actions of the local planning authority, and not to the actions of either the qualifying body in submitting a neighbourhood plan to the local planning authority for consideration or to the recommendations of the independent examiner. This is made clear by section 61(N) of the 1990 Act. This provides that the court may entertain proceedings by way of judicial review for questioning the decision of the local planning authority to hold a referendum or to make a neighbourhood plan. Relevant Policy Framework 19. The National Planning Policy Framework ( NPPF ) sets out the overarching national policy framework. It is now well established that the meaning of specific paragraphs within the NPPF is a matter of objective interpretation for the courts (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [18]-[19]; City and District Council of St Albans v R (on the application of) Hunston Properties Limited and the Secretary of State for Communities and Local Government [2013] EWCA Civ 1610 [4]; Gallagher Homes Ltd v Solihull Metropolitan Borough Council [2014] EWHC 1283 (Admin), [25], [91]). 20. The NPPF must also be read as coherent whole, see Tewkesbury BC v SSCLG [2013] EWHC 286 (Admin), [62]. Although the individual paragraphs will be very familiar to those attending, to see how they work together, it is perhaps helpful to consider them again in full, with certain key sentences underlined. 21. Paragraph 14 sets out the presumption in favour of sustainable development ( PFSD ): "At the heart of the [NPPF] is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. 9

10 For plan-making this means that: - local planning authorities should positively seek opportunities to meet the development needs of their area; - Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless: any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or specific policies in this Framework indicate development should be restricted ". 22. Paragraphs then make clear that the above PFSD requirement extends to neighbourhood plans: 15. Policies in Local Plans should follow the approach of the presumption in favour of sustainable development so that it is clear that development which is sustainable can be approved without delay. All plans should be based upon and reflect the presumption in favour of sustainable development, with clear policies that will guide how the presumption should be applied locally. 16. The application of the presumption will have implications for how communities engage in neighbourhood planning. Critically, it will mean that neighbourhoods should: develop plans that support the strategic development needs set out in Local Plans, including policies for housing and economic development plan positively to support local development, shaping and directing development in their area that is outside the strategic elements of the Local Plan; Paragraph 17 sets out 12 Core Planning Principles, of which two are particularly relevant to neiguhbourhood plans: 17. Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should: 10

11 be genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area. Plans should be kept up-to-date, and be based on joint working and co-operation to address larger than local issues. They should provide a practical framework within which decisions on planning applications can be made with a high degree of predictability and efficiency; proactively drive and support sustainable economic development to deliver the homes, business and industrial units, infrastructure and thriving local places that the country needs. Every effort should be made objectively to identify and then meet the housing, business and other development needs of an area, and respond positively to wider opportunities for growth. Plans should take account of market signals, such as land prices and housing affordability, and set out a clear strategy for allocating sufficient land which is suitable for development in their area, taking account of the needs of the residential and business communities; 24. Chapter 6 covers housing delivery and provides: 47. To boost significantly the supply of housing, local planning authorities should: use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period; identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land; identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15; 11

12 for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and set out their own approach to housing density to reflect local circumstances. 25. Paragraph 49 provides: 49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites. 26. Paragraph 158 and 159 then provide: 158. Each local planning authority should ensure that the Local Plan is based on adequate, up-to-date and relevant evidence about the economic, social and environmental characteristics and prospects of the area. Local planning authorities should ensure that their assessment of and strategies for housing, employment and other uses are integrated, and that they take full account of relevant market and economic signals Local planning authorities should have a clear understanding of housing needs in their area : 27. Paragraphs 183 to 185 cover Neighbourhood Plans: 183 Neighbourhood planning gives communities direct power to develop a shared vision for their neighbourhood and deliver the sustainable development they need. Parishes and neighbourhood forums can use neighbourhood planning to: set planning policies through neighbourhood plans to determine decisions on planning applications; and grant planning permission through Neighbourhood Development Orders and Community Right to Build Orders for specific development which complies with the order. 12

13 184 Neighbourhood planning provides a powerful set of tools for local people to ensure that they get the right types of development for their community. The ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan. To facilitate this, local planning authorities should set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible. Neighbourhood plans should reflect these policies and neighbourhoods should plan positively to support them. Neighbourhood plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies. 185 Outside these strategic elements, neighbourhood plans will be able to shape and direct sustainable development in their area. Once a neighbourhood plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains take precedence over existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict. Local planning authorities should avoid duplicating planning processes for non-strategic policies where a neighbourhood plan is in preparation. 28. The term Local Plan is used in place of development plan and is defined in the Glossary at Annex 2: Local Plan: The plan for the future development of the local area, drawn up by the local planning authority in consultation with the community. In law this is described as the development plan documents adopted under the Planning and Compulsory Purchase Act Current core strategies or other planning policies, which under the regulations would be considered to be development plan documents, form part of the Local Plan. The term includes old policies which have been saved under the 2004 Act. National Planning Practice Guidance 29. The National Planning Practice Guidance supplements the above policy, but is of an expressly secondary character. Although not yet subject to consideration by the courts, the same principles of objective interpretation would apply. 13

14 30. The main sections that are relevant to neighbourhood plans are Neighbourhood Planning, Strategic Environmental Assessment and Sustainability Appraisal (and its specific sub-section on neighbourhood plans) and Housing and economic land availability assessment. 31. Neighbourhood Planning, paragraph 009 (currently) 4 provides: Can a Neighbourhood Plan come forward before an up-to-date Local Plan is in place? Neighbourhood plans, when brought into force, become part of the development plan for the neighbourhood area. They can be developed before or at the same time as the local planning authority is producing its Local Plan. A draft neighbourhood plan or Order must be in general conformity with the strategic policies of the development plan in force if it is to meet the basic condition. A draft Neighbourhood Plan or Order is not tested against the policies in an emerging Local Plan although the reasoning and evidence informing the Local Plan process may be relevant to the consideration of the basic conditions against which a neighbourhood plan is tested. Where a neighbourhood plan is brought forward before an up-to-date Local Plan is in place the qualifying body and the local planning authority should discuss and aim to agree the relationship between policies in: the emerging neighbourhood plan the emerging Local Plan the adopted development plan with appropriate regard to national policy and guidance. The local planning authority should take a proactive and positive approach, working collaboratively with a qualifying body particularly sharing evidence and seeking to resolve any issues to ensure the draft neighbourhood plan has the greatest chance of success at independent examination. The local planning authority should work with the qualifying body to produce complementary neighbourhood and Local Plans. It is important to minimise any conflicts between policies in the neighbourhood plan and those in the emerging Local Plan. This is because section 38(5) of the Planning and Compulsory Purchase Act 4 All NPPG provisions are web-based and therefore subject to alteration and updates 14

15 2004 requires that the conflict must be resolved by the decision maker favouring the policy which is contained in the last document to become part of the development plan. 32. Paragraphs 74 to 77 concern paragraph 8(2)(e) of Schedule 4B: General conformity with the strategic policies contained in the development plan What is meant by general conformity? When considering whether a policy is in general conformity a qualifying body, independent examiner, or local planning authority, should consider the following: whether the neighbourhood plan policy or development proposal supports and upholds the general principle that the strategic policy is concerned with the degree, if any, of conflict between the draft neighbourhood plan policy or development proposal and the strategic policy whether the draft neighbourhood plan policy or development proposal provides an additional level of detail and/or a distinct local approach to that set out in the strategic policy without undermining that policy the rationale for the approach taken in the draft neighbourhood plan or Order and the evidence to justify that approach What is meant by strategic policies? Paragraph 156 of the National Planning Policy Framework sets out the strategic matters about which local planning authorities are expected to include policies in their Local Plans. The basic condition addresses strategic polices no matter where they appear in the development plan. It does not presume that every policy in a Local Plan is strategic or that the only policies that are strategic are labelled as such. How is a strategic policy determined? Strategic policies will be different in each local planning authority area. When reaching a view on whether a policy is a strategic policy the following are useful considerations: whether the policy sets out an overarching direction or objective whether the policy seeks to shape the broad characteristics of development the scale at which the policy is intended to operate whether the policy sets a framework for decisions on how competing priorities should be balanced 15

16 whether the policy sets a standard or other requirement that is essential to achieving the wider vision and aspirations in the Local Plan in the case of site allocations, whether bringing the site forward is central to achieving the vision and aspirations of the Local Plan whether the Local Plan identifies the policy as being strategic Planning practice guidance on Local Plans provides further advice on strategic policies. How does a qualifying body know what is a strategic policy? A local planning authority should set out clearly its strategic policies in accordance with paragraph 184 of the National Planning Policy Framework and provide details of these to a qualifying body and to the independent examiner. 33. Paragraphs 69 and 70 cover paragraph 8(2)(a): National policy and advice What does having regard to national policy mean? A neighbourhood plan or Order must not constrain the delivery of important national policy objectives. The National Planning Policy Framework is the main document setting out the Government s planning policies for England and how these are expected to be applied. National Planning Policy Framework Which national polices are relevant to a neighbourhood plan or Order? Paragraph 16 of the National Planning Policy Framework is clear that those producing neighbourhood plans or Orders should support the strategic development needs set out in Local Plans, including policies for housing and economic development. Qualifying bodies should plan positively to support local development, shaping and directing development in their area that is outside the strategic elements of the Local Plan. More specifically paragraph 184 of the National Planning Policy Framework states that neighbourhood plans and Orders should not promote less development than set out in the Local Plan or undermine its strategic policies. The content of a draft neighbourhood plan or Order will dictate which additional national policy is or is not a relevant consideration to take into account. The basic condition allows qualifying bodies, the independent examiner and local planning authority to reach a view in 16

17 those cases where different parts of national policy need to be balanced. A qualifying body is advised to set out in its basic conditions statement how they have had regard to national policy and considered whether a particular policy is or is not relevant. A qualifying body is encouraged to set out the particular national polices that it has considered, and how the policies in a draft neighbourhood plan or the development proposals in an Order take account of national policy and advice. Strategic Environmental Assessment 34. The existence, conduct and adequacy of an SEA goes to the core of compliance under paragraph 8(2)(f), and again interlocks with 8(2)(a) and (d). A significant error of law in SEA terms would amount to a failure to meet one of the basic conditions, and would in due course prevent recommendation by the Examiner. 35. The relevant legal framework governing strategic environmental assessment and sustainability appraisal will therefore be highly relevant at the submission stage, at examination and in the case of any legal challenge. 36. Regulation 5 of the Environmental Assessment of Plans and Programmes 2004 provides: 5(1) Subject to paragraphs (5) and (6) and regulation 7, where (a) the first formal preparatory act of a plan or programme is on or after 21st July 2004; and (b) the plan or programme is of the description set out in either paragraph (2) or paragraph (3), the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure. (2) The description is a plan or programme which (a) is prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, 17

18 telecommunications, tourism, town and country planning or land use, and (b) sets the framework for future development consent of projects listed in Annex I or II to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC. (3) The description is a plan or programme which, in view of the likely effect on sites, has been determined to require an assessment pursuant to Article 6 or 7 of the Habitats Directive. (4) Subject to paragraph (5) and regulation 7, where (a) the first formal preparatory act of a plan or programme, other than a plan or programme of the description set out in paragraph (2) or (3), is on or after 21st July 2004; (b) the plan or programme sets the framework for future development consent of projects; and (c) the plan or programme is the subject of a determination under regulation 9(1) or a direction under regulation 10(3) that it is likely to have significant environmental effects, the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure. (6) An environmental assessment need not be carried out (a) for a plan or programme of the description set out in paragraph (2) or (3) which determines the use of a small area at local level; or (b) for a minor modification to a plan or programme of the description set out in either of those paragraphs, unless it has been determined under regulation 9(1) that the plan, programme or modification, as the case may be, is likely to have significant environmental effects, or it is the subject of a direction under regulation 10(3). 37. Regulation 9 provides: 18

19 (1) The responsible authority shall determine whether or not a plan, programme or modification of a description referred to in (a) paragraph (4)(a) and (b) of regulation 5; (b) paragraph (6)(a) of that regulation; or (c) paragraph (6)(b) of that regulation, is likely to have significant environmental effects. (2) Before making a determination under paragraph (1) the responsible authority shall (a) take into account the criteria specified in Schedule 1 to these Regulations; and (b) consult the consultation bodies. (3) Where the responsible authority determines that the plan, programme or modification is unlikely to have significant environmental effects (and, accordingly, does not require an environmental assessment), it shall prepare a statement of its reasons for the determination. 38. Schedule 1 sets out a number of criteria: The characteristics of plans and programmes, having regard, in particular, to (a) the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources; (b) the degree to which the plan or programme influences other plans and programmes including those in a hierarchy; (c) the relevance of the plan or programme for the integration of environmental considerations in particular with a view to promoting sustainable development; (d) environmental problems relevant to the plan or programme; and (e) the relevance of the plan or programme for the implementation of [EU] 1 legislation on the environment (for 19

20 example, plans and programmes linked to waste management or water protection). Characteristics of the effects and of the area likely to be affected, having regard, in particular, to (a) the probability, duration, frequency and reversibility of the effects; (b) the cumulative nature of the effects; (c) the transboundary nature of the effects; (d) the risks to human health or the environment (for example, due to accidents); 39. Regulation 11 provides: (e) the magnitude and spatial extent of the effects (geographical area and size of the population likely to be affected); (f) the value and vulnerability of the area likely to be affected due to (i) special natural characteristics or cultural heritage; (ii) exceeded environmental quality standards or limit values; or (iii) intensive land-use; and (g) the effects on areas or landscapes which have a recognised national, Community or international protection status. (1) Within 28 days of making a determination under regulation 9(1), the responsible authority shall send to each consultation body (a) a copy of the determination; and (b) where the responsible authority has determined that the plan or programme does not require an environmental assessment, a statement of its reasons for the determination. (2) The responsible authority shall (a) keep a copy of the determination, and any accompanying statement of reasons, available at its principal office for 20

21 inspection by the public at all reasonable times and free of charge; and (b) within 28 days of the making of the determination, take such steps as it considers appropriate to bring to the attention of the public (i) the title of the plan, programme or modification to which the determination relates; (ii) that the responsible authority has determined that the plan, programme or modification is or is not likely to have significant environmental effects (as the case may be) and, accordingly, that an environmental assessment is or is not required in respect of the plan, programme or modification; and (iii) the address (which may include a website) at which a copy of the determination and any accompanying statement of reasons may be inspected or from which a copy may be obtained. 40. This therefore generates a requirement for a Screening Report to consider whether SEA will be required. 41. Article 3(1) and (2) of the SEA Directive and Regulation 5 above make clear that the concept of setting the framework for future development consent is a very important consideration in SEA terms. 42. It has been established by the Court of Justice of the European Union that the fact that the adoption of a plan/programme is not compulsory does not mean that SEA is not required for plans and programmes whose adoption is regulated by national legislative or regulatory provisions, which determine the competent authorities for adopting them and the procedure for preparing them, must be regarded as required within the meaning, and for the application, of [the SEA Directive ] (C- 567/10 Inter- Environnement Bruxelles ASBL v Région de Bruxelles- Capitale [2010] ECR I- 5611). 43. On the basis of that authority, it has been established that SEA can be a requirement for Supplementary Planning Documents (SPDs) (R (West Kensington Estates Tenants & Residents Association) v Hammersmith and 21

22 Fulham LBC [2013] EWHC 2834), and there are now a number of neighbourhood plans that have been subject to strategic environmental assessment (although the adequacy of those exercises has been subject to challenge). 44. Article 5(1) of the SEA Directive and Regulations 8 and 12 provide that the environmental report should identify, describe and evaluate the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme. 45. The OPDM s Practical Guide to the Strategic Environmental Assessment Directive (2004) provides: 2.12 Under Article 3(3) and 3(4), environmental assessment is required for certain categories of plans and programmes only where they are determined to be likely to have significant environmental effects. Plans and programmes in these categories are: Plans and programmes of the types listed in Article 3(2) which determine the use of small areas at local level, or which are minor modifications to plans and programmes; Plans and programmes of types which are not listed in Article 3(2), which set the framework for future development consent of projects (not limited to projects listed in the Annexes to the EIA Directive) The European Commission guidance (paragraphs ) suggests that plans or programmes which determine the use of small areas at local level might include a building plan which, for a particular, limited area, outlines details of how buildings must be constructed, determining, for example, their height, width or design. The complete phrase makes it clear that the whole of a local authority area could not be excluded (unless it were itself small). The key criterion for the application of the Directive, however, is not the size of area covered but whether the plan or programme would be likely to have significant environmental effects. 46. Effects may be both positive and negative. In the Practical Guide to the Strategic Environmental Assessment Directive, it is explained that: 22

23 B3 Predicting the effects of the plan or programme, including alternatives 5.B.9 Prediction of effects involves: Identifying the changes to the environmental baseline which are predicted to arise from the plan or programme, including alternatives. The predicted effects of alternatives can be compared with each other, or with no plan or programme and/or business as usual scenarios where these exist, and against the SEA objectives. Describing these changes in terms of their magnitude, their geographical scale, the time period over which they will occur, whether they are permanent or temporary, positive or negative, probable or improbable, frequent or rare, and whether or not there are secondary, cumulative and/or synergistic effects. 47. NPPG, SEA and SA, Paragraph 027 and 028 provide: Does a neighbourhood plan require a strategic environmental assessment? In some limited circumstances, where a neighbourhood plan could have significant environmental effects, it may fall within the scope of the Environmental Assessment of Plans and Programmes Regulations 2004 and so require a strategic environmental assessment. One of the basic conditions that will be tested by the independent examiner is whether the making of the neighbourhood plan is compatible with European Union obligations (including under the Strategic Environmental Assessment Directive). Whether a neighbourhood plan requires a strategic environmental assessment, and (if so) the level of detail needed, will depend on what is proposed in the draft neighbourhood plan. A strategic environmental assessment may be required, for example, where: a neighbourhood plan allocates sites for development the neighbourhood area contains sensitive natural or heritage assets that may be affected by the proposals in the plan the neighbourhood plan may have significant environmental effects that have not already been considered and dealt with through a sustainability appraisal of the Local Plan. How do you know if a draft neighbourhood plan might have significant environmental effects? To decide whether a draft neighbourhood plan might have significant environmental effects, its potential scope should be assessed at an 23

24 early stage against the criteria set out in Schedule 1 to the Environmental Assessment of Plans and Programmes Regulations The local planning authority should put in place a process to provide a screening opinion to the qualifying body on whether the proposed neighbourhood plan will require a strategic environmental assessment. The qualifying body should work with the local planning authority to be sure that the authority has the information it needs in order to provide a screening opinion. When deciding on whether the proposals are likely to have significant environmental effects, the local planning authority should consult the statutory consultation bodies. Where the local planning authority determines that the plan is unlikely to have significant environmental effects (and, accordingly, does not require an environmental assessment), it should prepare a statement of its reasons for the determination. Where a statement of reasons is provided in respect of a neighbourhood plan a copy of the statement should be provided to the qualifying body in order that the statement can be made available to the independent examiner. For example by including it in the basic conditions statement. Where a neighbourhood plan is likely to have a significant effect on the environment a strategic environmental assessment must be carried out. 48. There is additional guidance at paragraphs 029, 032, 033 which confirms that SEA decisions must inform the preparation of the neighbourhood plan at all relevant stage. SEA: Reasonable Alternatives 49. Annex I of the Directive and Schedule 2 of the Regulations, notably paragraph (h)/paragraph 8 expands on Article 5(1) and Regulation 12 above and provides that (h): an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information; (see the equivalent in Environmental Assessment of Plans and Programmes Regulations 2004, Regulation 12 and Schedule 1). 24

25 50. An SEA must then demonstrate equal examination of the alternatives which it is reasonable to select for examination alongside whatever, even at the outset, may be the preferred option. (Heard v Broadland DC [2012] EWHC 344 (Admin), [71]; as approved in Cogent Land LLP v Rochford DC [2012] EWHC 2542 (Admin) and R (Chalfont St Peter Parish Council) v Chiltern District Council [2013] EWHC 1877, [29]). Most recently, Mr Justice Sales observed in Ashdown Forest Economic Development LLP v SSCLG and Wealden DC [2014] EWHC 406 (Admin), paragraph 97 that: 97 A plan-making authority has an obligation under the SEA Directive to conduct an equal examination of alternatives which it regards as reasonable alternatives to its preferred option (interpreting the Directive in a purposive way, as indicated by the Commission in its guidance: see Heard v Broadland DC at [71]). The court will be alert to scrutinise its choices regarding reasonable alternatives to ensure that it is not seeking to avoid that obligation by saying that there are no reasonable alternatives or by improperly limiting the range of such alternatives which is identified. However, the Directive does not require the authority to embark on an artificial exercise of selecting as putative reasonable alternatives, for full strategic assessment alongside its preferred option, alternatives which can clearly be seen, at an earlier stage of the iterative process in the course of working up a strategic plan and for good planning reasons, as not in reality being viable candidates for adoption. 98 In my judgment, that is the position in the present case, by contrast with the position in Heard v Broadland DC. In Heard, the plan-making authority failed to explain in outline its reasons for the selection of the alternatives dealt with at the various stages, and failed to explain why ultimately only the preferred option was chosen to go forward for full assessment (see [66] and [70]-[71]). In this case, however, WDC has made rational and lawful choices in narrowing down a field of six options, initially to three (Scenarios A, B and C), and then in choosing only to take Scenario C forward for full detailed strategic assessment. It has explained its reasons for doing so at each stage in some detail in, respectively, chapter 6 and chapter 8 of the Sustainability Appraisal. Origins and the Search for the Proper Sequence 51. A central problem in neighbourhood planning at both the plan-making and decision-taking stages is what can be described as identifying the proper sequence between a particular local planning authority s local plan and the 25

26 qualifying body s proposed neighbourhood plan (see basic condition 8(2)(a) and (e) and paragraphs NPPF, 14, 16, 184). 52. It is important to be precise: this is not a question of absolute sequence, i.e. whether a neighbourhood plan can ever precede an up-to-date plan. All matters being equal, and with close regard to national policy and all material considerations, few would take objection to the neighbourhood plan document that resembled an updated village design statement. It should be noted that NPPG, paragraph 009 says nothing about the actual content of the neighbourhood plan. 53. The central problem arises when the neighbourhood plan is intended to contain policies which bring about a clear restriction on development, in circumstances where there is no up-to-date local plan containing a relevant strategic policy that can support that restriction. 54. The classic example are those neighbourhood plans which have emerged where the local plan preparation process has been slow or has effectively stalled, usually in the highest-scoring second-tier settlements within the relevant district or borough, which are the natural focus for additional residential development whilst there is no five year housing land supply. The qualifying bodies producing neighbourhood plans wish to oppose new residential development on the edge of the settlement, increasingly through the use of settlement boundaries, and seek to allocate on the basis of a target housing figure that at the point of submission and examination has no basis in objectively assessed need across the LPA s area as a whole. In these cases, statements of the settlement not being required to take more than our fair share of housing abound. Rigorous assessments of the underlying soundness of the proposed figure are essentially absent. 55. To be clear then: the search for the proper sequence is comprised within a complex, structured question: Can a neighbourhood plan lawfully contain a policy which is intended to restrict development when the existing local plan is out-of-date and provides no strategic policy to support that restriction? 26

27 Open Source Planning 56. In considering this question, it is instructive to begin by looking back to the origins of neighbourhood participation in the plan-making process in Open Source Planning, the Conservative Party s Policy Green Paper No This 25-page paper described, amongst many matters, a new pathway to collaborative local planning, in which individuals and neighbourhoods would be able to contribute to the plan-making process, but critically within the existing local plan structure: b. we will create a new system of collaborative planning by: giving local people the power to engage in genuine local planning through collaborative democracy designing a local plan from the bottom up, starting with the aspirations of neighbourhoods; We will therefore give local people the power to engage in genuine local planning by mandating that all local authorities use collaborative democratic methods in drawing up their local plans. a role for the planning authority itself in helping neighbourhoods to develop their visions and in brokering a rational and coherent plan for the area as a whole, on the basis of negotiation with each of the neighbourhoods and with all the relevant public agencies responsible for infrastructure and the environment. 27