The Localism Act 2011 provided for a new ‘bottom up’ approach to planning and gave power to residents’ groups and parish councils to shape and guide development in their areas. This sounded like good news for some, worrying for others, not least hard-pressed local authorities chasing eye-watering housing targets.
The intention was to boost the building of desperately needed new homes - a commitment that was recently reaffirmed by Sajid Javid, the Secretary of State for Communities and Local Government - at the same time as giving local residents a greater say in how this would be achieved. The key here seems to be the need for communities to accept a reasonable level of development, rather than seeking to use the Neighbourhood Plan process as a means of resisting housing.
However, decisions at all levels have shown a conflict in the weight that should be afforded to Neighbourhood Plans where a Local Planning Authority (LPA) does not have a five year housing land supply (HLS).
In such circumstances, the National Planning Policy Framework (NPPF) requires that any policies for the restriction of housing should be considered out of date. That being the case it would seem logical that this not only applies to Local Plan policies, but also Neighbourhood Plan policies too? Not always so.
Generally, LPAs are accepting that where they are unable to demonstrate a five year HLS, policies contained within Neighbourhood Plans should only be given weight where they do not seek to restrict housing delivery. But, the decisions of Planning Inspectors, the Secretary of State and the High Courts are telling a different, and very mixed, story.
The High Court decisions of Crane v SSCLS  and Woodcock Holdings Ltd v SSCLD  are well known. In the former, the Mr Justice Lindblom concluded that development proposals must be considered on their own merits, and that a lack of a five year HLS does not necessarily preclude the decision maker from giving weight to policies within a Development Plan, including those within a Neighbourhood Plan. However, in the latter case, the High Court ruled that decision makers must be ‘alive’ to paragraphs 14 & 49 of the NPPF where restrictive policies are contained within Neighbourhood Plans.
Most recently, two planning appeals for housing in Lindfield (Mid Sussex District Council – August 2016) and Yapton (Arun District Council – September 2016) have been determined by the Secretary of State following recommendations from the same Inspector. Both schemes were in localities benefitting from Neighbourhood Plans but lacking a five year HLS.
The Inspector concluded that the appeals should, on balance, be allowed, and that policies contained within the respective Neighbourhood Plans should be considered out of date.
Subsequently, the appeals were recovered by the Secretary of State for determination and he came to two different conclusions as to the weight that should be afforded to a Neighbourhood Plan.
In the Lindfield decision, he concluded that as a result of a lack of five year HLS, policies contained within the Neighbourhood Plan must be considered out of date and that on balance, planning permission should be granted. While in Yapton, the Secretary of State concluded that, notwithstanding a lack of five year HLS, very substantial weight should be given to conflict with a Neighbourhood Plan. He therefore dismissed the appeal.
The government remains committed to providing local residents with a voice and the means to shape development in their neighbourhoods. However, certainly in the South East, this seems to be at odds with the commitment to boost housing delivery, clearly demonstrated in the above cases.
Clearly, it should not be assumed that a lack of a five year HLS always provides a platform for speculative planning applications. Our advice? Where there is a made Neighbourhood Plan, or even an emerging Neighbourhood Plan, proceed with caution.
Take advice and be prepared for a tumultuous decision-making process.