Gladman Developments Ltd, R (on the application of) v Aylesbury Vale District Council & Ors [2014] EWHC 4323 (Admin)

Case No CO/3104/2014[2014] EWHC 4323 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 18 th December 2014
Before
MR JUSTICE LEWIS
Between
THE QUEENClaimantOn the application ofClaimantGLADMAN DEVELOPMENTS LIMITEDClaimantAYLESBURY VALE DISTRICT COUNCILDefendantWINSLOW TOWN COUNCILInterested Party
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Martin Kingston QC and James Corbet Burcher (instructed by Irwin Mitchell LLP) for ClaimantHereward Phillpot (instructed by Aylesbury Vale District Council) for DefendantHearing Hearing dates: 11 th& 12 th December 2014
JudgmentMr Justice Lewis :INTRODUCTION
[1]This is a claim for judicial review of a decision of Aylesbury Vale District Council (“the Council”) of 10 September 2014 making the Winslow Neighbourhood Plan (“the Neighbourhood Plan”). Winslow is a market town in Buckinghamshire with 4,500 residents. In summary, Policy 2 of the Neighbourhood Plan established a settlement boundary and provided that development outside the settlement boundary would only be permitted in exceptional circumstances. Policy 3 allocated land for sites within the settlement boundary for an indicative number of 455 new dwellings.[2]The claimant is a developer. It wished to develop three sites in the Winslow neighbourhood area. Its sites were outside the settlement boundary identified in Policy 2 and were not allocated as sites for housing under Policy 3. The claimant challenges the lawfulness of the Neighbourhood Plan and seeks to challenge the reasoning of an examiner who examined the Neighbourhood Plan prior to its adoption and recommended that it be submitted to a referendum and, by extension, the lawfulness of the decision of the Council to make the Neighbourhood Plan following a vote in favour of the Neighbourhood Plan at the referendum held in July 2014.[3]The principal complaint is that it was not permissible for the Neighbourhood Plan to include policies relating to a settlement boundary or the allocation of sites for housing at a time when the local planning authority had not yet adopted a development plan document containing strategic policies for meeting the objectively assessed housing needs of the district.[4]The claimant also contends that the examiner failed to have regard to relevant planning guidance when considering the site assessment carried out as part of the process of preparing the Neighbourhood Plan. The claimant further contends that the examiner failed properly to assess whether the Neighbourhood Plan satisfied the requirement relating to the preparation of a strategic environmental assessment report. Finally the claimant contends that the examiner failed to give adequate, intelligible reasons for his conclusions.

THE LEGAL FRAMEWORK

[5]Planning permission is required for development: see section 57 of the 1990 Act. The Section 70 (2) of that Act provides, so far as material, that, 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; (b) any local finance considerations, so far as material to the application; and any other material considerations.” any other material considerations.”

The Development Plan

[6]Development plans are dealt with in section 38 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). The material provisions provide as follows:
“(3) For the purposes of any other area in England the development plan is– (a) the regional strategy for the region in which the area is situated (if there is a regional strategy for that region), and (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).”
[7]Regional strategies in England have been revoked. For present purposes, therefore, the development plan will consist of two categories of documents:(1) the development plan documents; and(2) the neighbourhood development plan.[8]The development plan has particular significance in terms of the operation of the planning system. Section 38(6) of the 2004 Act provides that:
“(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]That subsection applies to, amongst others, decisions on applications for planning permission for development (see section 70 of the 1990 Act). If proposed development conflicts with the development plan, permission will be refused unless material planning considerations indicate otherwise. Development Plan Documents.[10]Local development schemes are dealt with in Part 2 of the 2004 Act. In summary, section 15(1) of the 2004 Act requires a local planning authority to prepare and maintain a scheme to be known as their local development scheme. Section 17(3) of the 2004 Act provides that:
“(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.”
[11]Section 15(2)(aa) of the 2004 Act provides that the local development scheme must specify which local development documents are to be “development plan documents”. Such documents are development plan documents for the purpose of (and form part of) the development plan (see section 38(9) and 37(3) of the 2004 Act.[12]There are provisions governing the preparation of local development plan documents in section 19 of the 2004 Act. They must also be submitted by the Secretary of State for examination by a person appointed by him. The independent inspector will determine whether the development plan document meets relevant statutory requirements and is sound and whether the authority has complied with relevant duties relating to its preparation including the duty to co-operate with other specified bodies: see section 20 of the 2004 Act.

Neighbourhood Development Plans

[13]Amendments to the 2004 Act were made by the Localism Act 2011. Those amendments provide for a process whereby parish councils or bodies designated as neighbourhood forums could initiate the making of a neighbourhood development plan. The provisions provide for an independent examination of a neighbourhood development plan. The examiner may recommend that the plan, with or without modification, is submitted to a referendum. If more than half of those voting at a referendum vote in favour of the plan, the local planning authority must make the neighbourhood development plan.[14]For present purposes, the material provisions of section 38A of the 2004 Act provide as follows:
“38A Meaning of “neighbourhood development plan” “(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 (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.”
[15]A qualifying body is a parish council or an organisation or body designated as a neighbourhood forum authorised to act for a neighbourhood area for the purposes of a neighbourhood development plan: see section 38A(12) of the 2004 Act. Section 38B(1) of the 2004 Act prescribes the provision that may be made by neighbourhood development plans in that they must specify the period for which they are to have effect, may not include provision about excluded developments as defined and may not relate to more than one neighbourhood area.[16]Schedule 4B to the 1990 Act, with modifications, is applied to the process of preparing and making a neighbourhood plan: see sections 38A(5) and 38C(5) to the 2004 Act. For present purposes, the material provisions provide as follows. Paragraph 7 requires the local authority to submit a draft neighbourhood plan for independent examination.

(d) of the 2004 Act, provides so far as material, as follows:

“(1) The examiner must consider the following—” (a) whether the draft neighbourhood development order meets the basic conditions (see sub-paragraph (2)), (b) whether the draft order complies with the provision made by or under sections 38A and 38B of the 2004 Act, … (5) is appropriate, (d) whether the area for any referendum should extend beyond the neighbourhood area to which the draft order relates, and (e) such other matters as may be prescribed. “(2) A draft order 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 order, … (d) the making of the order contributes to the achievement of sustainable development, (e) the making of the order 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, and (g) prescribed conditions are met in relation to the order and prescribed matters have been complied with in connection with the proposal for the order.” (a) whether the draft neighbourhood development order meets the basic conditions (see sub-paragraph (2)), (b) whether the draft order complies with the provision made by or under sections 38A and 38B of the 2004 Act, … (5) is appropriate, (d) whether the area for any referendum should extend beyond the neighbourhood area to which the draft order relates, and (e) such other matters as may be prescribed. “(2) A draft order 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 order, … (d) the making of the order contributes to the achievement of sustainable development, (e) the making of the order 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, and (g) prescribed conditions are met in relation to the order and prescribed matters have been complied with in connection with the proposal for the order.”
[17]The reference to “the development plan” in paragraph 8(2)(e) excludes the neighbourhood development plan (see paragraph 17 of Schedule 4B to the 1990 Act). There are no regional strategies in force. The basic condition in section 8(2)(e), therefore, means, in practice, “in general conformity with the strategic policies contained in the development plan [documents] for the area (or any part of the area”).[18]Paragraph 9 of Schedule 4B to the 1990 Act deals with the process to be followed at the examination. The procedure essentially provides for consideration of the draft neighbourhood development plan by means of written representations although there is provision, in certain cases for, a hearing. Paragraph 9 provides as follows: “(1) The general rule is that the examination of the issues by the examiner is to take the form of the consideration of written representations. “(2) But the examiner must cause a hearing to be held for the purpose of receiving oral representations about a particular issue at the hearing—(a) in any case where the examiner considers that the consideration of oral representations is necessary to ensure adequate examination of the issue or a person has a fair chance to put a case, or(b) in such other cases as may be prescribed. “(3) The following persons are entitled to make oral representations about the issue at the hearing— (a) the qualifying body, (b) the local planning authority,(c) where the hearing is held to give a person a fair chance to put a case, that person, and(d) such other persons as may be prescribed. “(4) The hearing must be in public. “(5) It is for the examiner to decide how the hearing is to be conducted, including— (a) whether a person making oral representations may be questioned by another person and, if so, the matters to which the questioning may relate, and (b) the amount of time for the making of a person's oral representations or for any questioning by another person. “(6) In making decisions about the questioning of a person's oral representations by another, the examiner must apply the principle that the questioning should be done by the examiner except where the examiner considers that questioning by another is necessary to ensure— (a) adequate examination of a particular issue, or (b) a person has a fair chance to put a case. “(7) Sub-paragraph (5) is subject to regulations under paragraph 11.” (a) adequate examination of a particular issue, or (b) a person has a fair chance to put a case.[19]Paragraph 10 of Schedule 4B sets out what the examiner must do in the following terms. “(1) The examiner must make a report on the draft order containing recommendations in accordance with this paragraph (and no other recommendations). (2) The report must recommend either—(a) that the draft order is submitted to a referendum, or(b) that modifications specified in the report are made to the draft order and that the draft order as modified is submitted to a referendum, or(c) that the proposal for the order is refused. (3) The only modifications that may be recommended are— (a) modifications that the examiner considers need to be made to secure that the draft order meets the basic conditions mentioned in paragraph 8(2), (b) modifications that the examiner considers need to be made to secure that the draft order is compatible with the Convention rights, (c) modifications that the examiner considers need to be made to secure that the draft order complies with the provision made by or under sections 38A and 38B of the 2004 Act and ….. (e) modifications for the purpose of correcting errors. (4) The report may not recommend that an order (with or without modifications) is submitted to a referendum if the examiner considers that the order does not— (a) meet the basic conditions mentioned in paragraph 8(2), or (b) comply with the provision made by or under sections 38A and 38B of the 2004 Act. (5) If the report recommends that an order (with or without modifications) is submitted to a referendum, the report must also make— (a) a recommendation as to whether the area for the referendum should extend beyond the neighbourhood area to which the order relates, and (b) if a recommendation is made for an extended area, a recommendation as to what the extended area should be. (6) The report must— (a) give reasons for each of its recommendations, and (b) contain a summary of its main findings. (7) The examiner must send a copy of the report to the qualifying body and the local planning authority. (8) The local planning authority must then arrange for the publication of the report in such manner as may be prescribed. …..

The National Planning Policy Framework (“the Framework”)

[20]The Framework was adopted in March 2012. It sets out the government’s planning polices for England. It is guidance. It is not part of any development plan. The policies contained within it, however, are a material consideration in planning terms.[21]Parts of the Framework set out general guidance applicable to development generally and those parts may apply to the making of a development plan or a decision on a particular application for planning permission. Other parts are applicable to the development plan (that is, the combination of the development plan documents and the neighbourhood development plan). Some parts are applicable to development plan documents (referred to compendiously in the Framework as the “Local Plan”: see the glossary). Some parts specifically concern neighbourhood development plans.[22]Paragraph 6 of the Framework explains that the purpose of the planning system is to contribute to the achievement of sustainable development. Paragraph 14 explains that at the heart of the Framework is a presumption in favour of sustainable development which should be seen as a golden thread running through both plan-making and individual decision-taking and provides as follows:
“At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking. 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 resticted. For decision-taking this means: • Approving development proposals that accord with the development plan without delay; and • Where the development plan is absent, silent or relevant policies are out-of-date, granting permission 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.” • 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 resticted. • Approving development proposals that accord with the development plan without delay; and • Where the development plan is absent, silent or relevant policies are out-of-date, granting permission 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.”
[23]Paragraphs 15 and 16 of the framework provide as follows:
“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; and • Identify opportunities to use Neighbourhood Development Orders to enable developments that are consistent with their neighbourhood plan to proceed.” • 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; and • Identify opportunities to use Neighbourhood Development Orders to enable developments that are consistent with their neighbourhood plan to proceed.”
[24]The Framework then contains a series of sections under a heading “Delivering sustainable development” which contain substantive polices relating to discrete matters such as, for example, maintaining town centres, transport and so on. Section 6 deals with “Delivering a wide choice of homes”. Paragraph 47 of the Framework provides as follows:
“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; • 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.” • 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; • 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]That section is primarily addressed to local planning authorities. It is giving them guidance on what the Framework calls the Local Plan (that is, the development plan documents) should include to achieve the aim of boosting housing supply significantly. Paragraphs 150 and following deal with Local Plans (that is, development plan documents) and, in relation to housing, encourages local planning authorities to ensure that they have a good understanding of housing needs in their area and says those authorities should prepare a strategic housing assessment to assess their full housing needs and a strategic housing land availability assessment to establish realistic assumptions about the availability, suitability and viability of land to meet the identified need for housing.[26]Paragraphs 183 to 185 of the Framework deal specifically with neighbourhood development plans and provides as follows: “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. “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.”• 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. THE FACTS The Development Plan Documents

THE FACTS

[27]The Council, which is the local planning authority for the area, adopted the Aylesbury Vale District Local Plan (“the District Plan”) in January 2004. That set out housing policies, and identified the housing need for the district as a whole and for Winslow, for the period up to 2011. That District Plan has expired but certain of the policies were saved by a direction of the Secretary of State. Those saved policies remain part of the development plan. The saved polices do not, however, include any polices relating to the identification of the housing needs for the district, or for Winslow, at the present time and do not contain any strategic housing policies.[28]The Council prepared a draft Vale of Aylesbury Plan (“the Vale Plan”) that, if adopted, would have been a development plan document governing the period from 2011 to 2031 and would have formed part of the development plan. That did identify a housing requirement for the district as a whole and for Winslow (assessed as being 400 homes). An inspector was appointed to examine the Vale Plan. He considered that the Council had not carried out its statutory duty in relation to co-operation with other authorities. The inspector further considered that the level of housing provision identified was not the result of effective co-operation with other relevant authorities and that significant strategic housing issues needed to be resolved through the plan-making process following co-operation. The inspector recommended that the draft development plan document should not be adopted. The inspector’s views are set out in a letter dated 7 January 2014. Following that, the Council resolved to withdraw the Vale Plan.[29]As a result, the Council does not yet have an adopted development plan document in place dealing with strategic housing issues, such as the identification of housing need within the district, and does not have a development plan document containing strategic policies relating to housing.

The Neighbourhood Development Plan

[30]Winslow Town Council (“the Town Council”) took up the opportunity offered by the Localism Act 2011 and undertook the process of preparing a neighbourhood development plan for their neighbourhood. They established a steering group of members of the council, and co-opted willing and experienced local residents onto the steering group. They undertook extensive consultation in accordance with the relevant regulations. They prepared a variety of documents over a considerable period of time. These included a consultation document, a site assessment report, a state of the town report and strategic environmental assessment scoping report and a strategic environmental assessment report. In the light of that, they prepared a draft Neighbourhood Plan. The commitment shown, and work done, by the residents of Winslow in the preparation of the Neighbourhood Plan are impressive.[31]The Neighbourhood Plan covers the period 2014 - 2031. Section 1 sets out its purpose, refers to the strategic environmental assessment carried out and describes the preparation process and the consultation undertaken. Section 2 describes the long history of Winslow, noting the endowment for an abbey given by King Offa of Mercia in 792, the grant of its market charter in 1235 and the building of Winslow Hall, the home of William Lowndes, Secretary of the Treasury to William and Mary, in the early 1700s. Section 2 also gives current statistics for the town, providing a picture of its current size and population, records the community views and the planning policy context. At section 3, the Neighbourhood Plan turns to its vision for Winslow and its objectives. Part of its vision is this: “In 2031, Winslow will have grown to become a sustainable town that is more able to meet its own needs for housing, jobs, community facilities and public and commercial services. ….. “Above all the town has retained its special historic and architectural character by carefully managing change within its built up area and by protecting its setting and surrounding open countryside from development”.[32]The key objectives included meeting future housing demand and need for the town and to protect the special historic and landscape character of town and its surroundings.[33]Section 4 set out policies. Policy 1 is as follows:
“Policy 1: The Presumption in Favour of Sustainable Development Planning applications which accord with the policies in the Neighbourhood Plan and the development plan will be approved by the local planning authority, unless material considerations indicate otherwise. Planning permission will also be granted where relevant policies in the Neighbourhood Plan are out of date or silent unless: • Other relevant policies in the development plan for Aylesbury Vale indicate otherwise; • Any adverse impacts of the proposal would significantly and demonstrably outweigh its benefits when assessed against the policies in the National planning Policy Framework taken as a whole; • Specific policies in the Framework or other material considerations indicate that development should be restricted.” • Other relevant policies in the development plan for Aylesbury Vale indicate otherwise; • Any adverse impacts of the proposal would significantly and demonstrably outweigh its benefits when assessed against the policies in the National planning Policy Framework taken as a whole; • Specific policies in the Framework or other material considerations indicate that development should be restricted.”
[34]Policies 2 and 3 are the ones to which the claimant objects in particular. Policy 2 is as follows:
“Policy 2: A Spatial Plan for the Town The Neighbourhood Plan designates a Winslow Settlement Boundary (WSB), as shown on the Proposals Map, for the purpose of: I. directing future housing, economic and community related development in the Parish to the town of Winslow to enhance its role as a resilient and sustainable community; II. containing the spread of the Town, by promoting infilling up to its natural physical boundaries; and III. encouraging the re-use of previously-developed sites. Proposals for housing development outside the Winslow Settlement Boundary will only be granted in exceptional circumstances. Any new dwelling required to serve the essential uses of agriculture, forestry or some other special need shall be sited within or immediately adjacent to an existing group of dwellings suitably located to serve the purpose, unless it can be shown that there are overriding reasons why it must be built elsewhere.”
I. directing future housing, economic and community related development in the Parish to the town of Winslow to enhance its role as a resilient and sustainable community; II. containing the spread of the Town, by promoting infilling up to its natural physical boundaries; and III. encouraging the re-use of previously-developed sites.[35]The opening words of Policy 3 are as follows: “Policy 3: Housing Allocations The Neighbourhood Plan allocates land for housing development in the plan period from 1 April 2014 to 31 March 2031 on the following sites: I. 250* dwellings on Land East of Furze Lane – comprising a mix of predominantly 2, 3 and 4 bed homes, to be delivered in the period 2014 – 2031, provided the scheme:a. Allocates up to 1 Ha of open market housing land to deliver around 20 custom-build homes,b. Meets its public open space requirement on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, andc. Implements appropriate improvements to Furze Lane and to the Local highway network. II. 75* dwellings on Land at Winslow Rugby Club – comprising a mix of predominantly 2, 3 and 4 bed houses, to be delivered in the period 2020 – 2031, provided: a. The existing sports facility is re-provided in accordance with Policy 13, b. It meets its public open space requirements on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, c. Makes a financial contribution to improvements to Furze Lane and to the local highway network III. Further to consultation and a detailed masterplan, an appropriate number of dwellings on Land off Granborough Road – comprising a mix of predominantly 2, 3 and 4 bed houses, to be delivered in the period 2020 – 2031, provided: a. It meets its public open space requirements on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, b. It makes a positive contribution to the local character and distinctiveness and IV. 65* dwellings on Land off Station Road – comprising a mix of predominantly 2 and 3 bed homes, to be delivered in the period 2020 – 31, provided the scheme: a. Meets all or part of its public open space requirements on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, and V. 30* extra-care dwellings on Land at the Winslow Centre, to be delivered in the period 2020 – 2031.” “* All dwellings numbers are indicative and will be reviewed at the specific application stage. The Neighbourhood Plan will support proposals for housing development on previously developed land within the Winslow Settlement Boundary. Proposals for housing development outside the Winslow Settlement Boundary will not be supported unless they require a countryside location and maintain the intrinsic character and beauty of the countryside.” a. Allocates up to 1 Ha of open market housing land to deliver around 20 custom-build homes, b. Meets its public open space requirement on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, and c. Implements appropriate improvements to Furze Lane and to the Local highway network. a. The existing sports facility is re-provided in accordance with Policy 13, b. It meets its public open space requirements on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, c. Makes a financial contribution to improvements to Furze Lane and to the local highway network a. It meets its public open space requirements on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, b. It makes a positive contribution to the local character and distinctiveness and a. Meets all or part of its public open space requirements on site and makes an appropriate financial contribution to off-site sports pitch and community facilities provision, and

The Examination

[36]The Neighbourhood Plan was submitted for examination. An independent examiner reported to the Council in May 2014. His report should be read in its entirety. The examiner records the fact that examinations were generally to be by way of written representations only but that he had held a public hearing in the present case. He noted that the role of the independent examiner was to consider whether a neighbourhood plan met the basic conditions set out in paragraph 8 of Schedule 4B to the 1990 Act. He specifically set out three of those, namely that the neighbourhood plan must:-• “Have regard to national policies and advice contained in guidance issued by the Secretary of State;• Contribute to the achievement of sustainable development;• Be in general conformity with the strategic policies of the development plan (see Development Plan Status below) for the area.”[37]He noted that a further condition was that the neighbourhood plan must not breach, and must be compatible with, obligations imposed by European Union law.[38]The examiner specifically confirmed what documents he had considered in addition to the neighbourhood plan itself. These were:
“In undertaking this examination, I have considered each of the following documents in addition to the Examination Version of the Winslow Neighbourhood Plan: • National Planning Policy Framework (The Framework) (2012) • Planning Practice Guidance (2014) • Town and Country Planning Act 1990 (as amended) • The Localism Act (2011) • The Neighbourhood Planning Regulations (2012) • Aylesbury Vale District Local Plan (Adopted 2004) • Basic Conditions Statement • Strategic Environment Assessment • Site Assessments Report • Consultation Statement Also: • Representations received during the publicity period.” • National Planning Policy Framework (The Framework) (2012) • Planning Practice Guidance (2014) • Town and Country Planning Act 1990 (as amended) • The Localism Act (2011) • The Neighbourhood Planning Regulations (2012) • Aylesbury Vale District Local Plan (Adopted 2004) • Basic Conditions Statement • Strategic Environment Assessment • Site Assessments Report • Consultation Statement Also: • Representations received during the publicity period.”
[39]The examiner addressed the question of whether the Neighbourhood Plan had been prepared in accordance with the EU Directive 2001/42/EC on strategic environmental assessment. In his consideration of that issue, the examiner noted that the strategic environmental assessment report need not include more detail, or require more resources to produce, than “is appropriate for the content and level of detail in the neighbourhood plan”. He considered in detail the process that had been undertaken. He considered the strategic environmental assessment report itself. He noted that there had been consultation and no statutory body had objected to the strategic environmental assessment. The examiner also noted that the Town Council had worked closely with officers of the Council and he took into account that the Council considered that the neighbourhood plan was compatible with EU law. The examiner concluded:
“Taking all of the above into account, I find that there is evidence to demonstrate that the qualifying body has sought to consider environmental impacts at a level of detail and using resources appropriate for the content and level of detail in the Neighbourhood Plan. It produced and consulted on a Scoping Report and produced and consulted on an SEA. There was close, collaborative working between the qualifying body and Aylesbury Vale District Council. Aylesbury Vale District Council has determined that the Neighbourhood Plan is compatible with EU Regulations (including obligations under the Strategic Environmental Directive).”
[40]In relation to the neighbourhood plan, he noted the section on vision and objectives for Winslow, based on sustainable growth, and observed that he found the section “helpful and informative”. He noted that the Neighbourhood Plan began with a positive policy, Policy 1, in support of sustainable development and he considered that this reflected the national policy presumption in favour of sustainable development.[41]The examiner then analysed Policy 2. He noted that it provides for growth while containing development within the identified settlement boundary and allowing for residential development outside the settlement boundary in exceptional circumstances. He noted that Policy 2:
“Is aimed at reinforcing the sustainability of the town, derived from a pattern of development around the town centre, where most of Winslow’s community facilities are located, and avoiding the need for greenfield sites beyond the town’s boundary.”
[42]He considered that that a policy of promoting of a main urban area while recognising the intrinsic character and beauty of the countryside had regard to national policy and was in general conformity with the District Plan. The examiner was aware that, and referred to the fact that, the District Plan was silent as to future levels of housing and employment growth as the relevant policies had expired and not been saved. He considered the basis upon which the draft Neighbourhood Plan provided for the level of growth anticipated. He was aware that there were others who disagreed with the approach set out in the Neighbourhood Plan and who considered that land should be allocated on the basis of much more significant growth than that envisaged in the Neighbourhood Plan. As the examiner noted:
“However, there are no adopted strategic policies upon which to base a more significant growth strategy. In this regard, whilst the Neighbourhood Plan cannot be in general conformity with strategic policies that don’t exist, it is not my role (nor is it within the scope of my dull brain) to consider whether the Neighbourhood Plan would be inconsistent with an emerging development plan once it is adopted sometime in the future. The Neighbourhood Plan has, however, been determined on the basis of planning positively for growth and it sets out why this growth would be sustainable. As such the approach does have regard to national policy. Furthermore, the Neighbourhood Plan has been progressed on a collaborative basis, taking into account available information. In addition, it has undergone robust consultation and evidence has been presented to demonstrate that the policies of the Neighbourhood Plan have emerged through this consultation and have significant local support.”
[43]The examiner then considered Policy 3. The examiner noted that:
“Policy 3: Housing Allocations Policy 3 allocates land for housing development during the Neighbourhood Plan period. It provides for positive growth. It has regard to national policy, which considers that sustainable development is about positive growth. The Neighbourhood Plan states that the sites reflect the availability of suitable sites within the Winslow Settlement Boundary, as identified within the Winslow Neighbourhood Land Site Assessments Report, which forms part of the evidence base. I note that deliverability was considered during the Hearing and taking this and other evidence into account, I am satisfied that the allocated sites are deliverable during the Neighbourhood Plan period and there is no substantive evidence to the contrary. Whilst there is some criticism of the process through which sites were allocated, I note that the allocations have emerged through a Neighbourhood Plan that has undergone robust consultation and which enjoys significant local support.”
[44]He dealt with a modification and recommended removing the word “up to” before the number of houses on each site to provide for some additional flexibility. He considered a particular site where there were specific issues. He concluded that:
“Subject to the above modifications, I consider that Policy 3 meets the Basic Conditions. The phasing of sites has regard to national policy by guiding development in a clear manner and in so doing, providing a practical framework within which decisions on planning applications can be made with a high degree predictability and efficiency. There is reference in the supporting text to consideration of the evidence base for the withdrawn Vale of Aylesbury Plan Strategy. I have established above that the qualifying body has worked closely with the local planning authority I also note that a wide variety of evidence has been considered and that the Neighbourhood Plan and its evidence base have undergone robust consultation. Representations have presented other sites as being suitable for inclusion in the Neighbourhood Plan. However, I have found that Policy 3 meets the Basic Conditions and the existence of other sites, whether suitable or not, is not something against which the Neighbourhood Plan is examined.”
[45]The examiner then considered other policies which are not in dispute in the present proceedings. He concluded, in his summary, that “Summary The Winslow Neighbourhood Plan is the result of a significant and sustained community effort over a number of years. It is a clear and distinctive Neighbourhood Plan, founded upon community consultation and which provides for the sustainable growth of Winslow. In completing this examination, I have recommended a number of modifications to the Neighbourhood Plan. Subject to these, the Winslow Neighbourhood Plan• Has regard to national policies and advice contained in guidance issued by the Secretary of State;• Contributes to the achievement of sustainable development;• Is in general conformity with the strategic policies of the development plan for the area;• Does not breach, and is compatible with European Union obligations and the European Convention of Human Rights. In this way, the Winslow Neighbourhood Plan meets the Basic Conditions. I have already noted above that the Plan meets paragraph 8(1) requirements.”• Has regard to national policies and advice contained in guidance issued by the Secretary of State;• Contributes to the achievement of sustainable development;• Is in general conformity with the strategic policies of the development plan for the area;• Does not breach, and is compatible with European Union obligations and the European Convention of Human Rights.[46]He therefore recommended that, subject to the modifications proposed, the Neighbourhood Plan should proceed to a referendum.

The Legal Challenge

[47]The Council resolved on 11 June 2014 that the draft Neighbourhood Plan, modified as the examiner proposed, should be put to a referendum. The claimant had sought to have three sites allocated for housing. Those sites were, however, outside the settlement boundary identified in Policy 2, and were not identified as sites for housing in Policy 3. At present, there is no development plan document dealing with housing requirements. If, however, there was a vote in favour of the Neighbourhood Plan at a referendum, and the plan adopted, it would become part of the development plan. In the absence of exceptional circumstances, development outside the settlement boundary (including the claimant’s sites) would not comply with the development plan and, in accordance with section 38(6) of the 2004 Act, planning permission would be refused unless material considerations indicated otherwise.[48]The claimant therefore wished to prevent the referendum proceeding. It therefore applied for judicial review of what were described as collective decisions of the Council relating to the holding of a referendum on the draft Neighbourhood Plan and sought an interim injunction to prevent the holding of the referendum. Stewart J. heard that application on 22 July 2014 – two days before the referendum was due to take place. He refused to grant an interim injunction. The referendum could therefore proceed and the people of Winslow would have the opportunity to vote on the proposed Neighbourhood Plan for their town.

The Referendum

[49]On the 24 July 2014, Winslow held its referendum. Sixty percent of those eligible to vote did so. That is, to date, the highest percentage turnout at a referendum on a neighbourhood plan. Of those, 98% voted in favour of the Neighbourhood Plan.

The Making of the Neighbourhood Plan

[50]Given the vote in favour of the Neighbourhood Plan, the Council was obliged to and did made the Neighbourhood Plan on 10 September 2014. The Neighbourhood Plan is now part of the development plan.

The Continuation of the Challenge

[51]The claimant continued its legal challenge to the Neighbourhood Plan. It amended its claim form so that, formally, the challenge is to the decision of the Council to make the Neighbourhood Plan. In practice, as appeared from the Claimant’s skeleton argument and the oral submissions made at the hearing, the claimant contends that the Neighbourhood Plan was unlawful and that the reasoning of the examiner in finding that the basic conditions set out in paragraph 8(2) of Schedule 4B to the 1990 Act were satisfied was flawed. Stewart J. ordered a rolled-up hearing, that is a hearing where the application for permission to apply for judicial review would be heard, with the hearing of the claim immediately afterwards if permission were granted. In the event, full argument on all the issues was heard at the same time.

THE ISSUES

[52]In the light of the grounds in the claim form, the skeleton argument and the oral submissions made on behalf of the Claimant, the following issues arise: 1) could a neighbourhood plan lawfully include policies such as those in Policies 2 and 3 of the Neighbourhood Plan in circumstances where there is no development plan document setting out strategic policies for housing? That, in turn, raised three issues:(a) as a matter of law, could a neighbourhood plan satisfy the basic condition in paragraph 8(2)(e) of Schedule 4B to the 1990 Act, namely that it be in general conformity with strategic policies contained in a development plan document, when there was no such development plan document containing strategic housing policies in place (ground 2 of the challenge)?(b) was the effect of Policies 2 and 3 of the Neighbourhood Plan such as to put in place a strategic housing policy which the Framework contemplated could only be included in a development plan document not a neighbourhood development plan so that the examiner should not have been satisfied that conditions 8(2)(a), (d) and (e) of Schedule 4B to the 1990 Act were met (ground 3 of the challenge) ?(c) was it inconsistent with the Framework for a neighbourhood development plan to include such policies in the absence of a development plan document dealing with strategic housing issues, so that the examiner should not have been satisfied that condition 8(2)(a) of Schedule 4B to the 1990 Act was met (ground 1 of the challenge)? 2) did the examiner err in failing to have regard to national planning policy in particular the Planning Practice Guidance, when considering the adequacy of the site allocation carried out in the context of the Neighbourhood Plan. 3) did the examiner err in his approach to deciding whether the basic condition in paragraph 8(2)(f) of Schedule 4B to the 1990 Act was met as he failed to consider whether there had been an adequate assessment of reasonable alternatives in the preparation of the strategic environmental assessment? 4) did the examiner fail to give adequate intelligible reasons for his conclusions?

THE FIRST ISSUE – THE PERMISSIBLE LIMITS OF A NEIGHBOURHOOD DEVELOPMENT PLAN

[53]The basic premise underlying the claimant’s first three grounds of challenge is that it is impermissible for a neighbourhood development plan to include policies which determine issues such as the amount of housing required and the location of that housing in circumstances where there is no development plan document in place setting out strategic polices on those issues.[54]Mr Kingston Q.C, on behalf of the claimant, put the matter in essentially three ways. First, he contends that an examiner could not be satisfied that a neighbourhood plan was “in general conformity with the strategic policies contained in” the relevant development plan document as required by paragraph 8(2)(e) of Schedule 4B of the 1990 Act if there were no such policies yet in existence. He submitted that the paragraph pre-supposed the existence of a relevant development plan document and, absent such a document, the examiner could not conclude that that condition was met. He submitted that the statutory provisions governing development plan documents indicated that they would deal with strategic issues such as the housing needs for a particular area and strategic policies governing such matters. There is a duty on planning authorities co-operate with each other in relation to the preparation of such matters by reason of section 33A of the 2004 Act. That, he submitted, was an indication that authorities should be assessing such matters as housing need together with other authorities, and the matter was not intended to be dealt with by a neighbourhood development plan in the absence of a development plan document determining such issues. There was also a higher degree of independent scrutiny of such development plan documents in that an independent inspector had to be satisfied that the development plan document was sound and that the duty to co-operate had been complied with: see section 20(5) of the 2004 Act.[55]Secondly, he submitted that the Framework provided that neighbourhood plans must be in conformity with the strategic policies in the development plan documents (referred to in the Framework as the Local Plan). Paragraph 184 of the Framework contemplates that the neighbourhood plans should reflect these policies and should plan positively to support them and should not promote less development than set out in the development plan documents or undermine the strategic policies contained in those documents. Mr Kingston submits that the Framework presupposes that the development plan documents, not the neighbourhood plan, will set out strategic policies. He submits that the effect of Policies 2 and 3, in the absence of any development plan document, was to determine, in practical terms, strategic issues such as the amount and location of housing within Winslow. That was a matter that the development plan documents should deal with not a neighbourhood development plan.[56]Thirdly, and related, Mr Kingston submits that the Framework presupposes that policies governing housing would be based on an objective assessment of housing need by a local planning authority in the context of boosting housing supply significantly (as reflected, for example, in paragraphs 47, 156 and 159 of the Framework). To allow matters such as the need for housing to be decided by a neighbourhood development plan in the absence of a development plan document would not be consistent with the Framework as the policies in the neighbourhood development plan would not be based on an objective assessment of housing need as contemplated by the Framework[57]In summary, therefore, Mr Kingston submits that the statutory framework requires that strategic policies governing housing should be included within a development plan document and, absent such strategic policies in a development plan document, a neighbourhood development plan should not seek to regulate such strategic matters. He submitted that that position is reflected in the Framework. He submitted that the aim underlying both the statute and the Framework is to ensure that strategic policies are developed and scrutinised through the more rigorous development plan document process and, absent a development plan document dealing with relevant strategic policies on housing, neighbourhood plans should not seek to perform the role of fixing what are in effect the strategic policies which will determine these matters. That would lead, in his submission, to strategic policies governing housing being decided in isolation at neighbourhood level without proper co-operation between different authorities and without a robust assessment of housing need.

Discussion

[58]In my judgment, a neighbourhood development plan may include policies dealing with the use and development of land for housing, including policies dealing with the location of a proposed number of new dwellings, even where there is at present no development plan document setting out strategic polices for housing. The examiner was therefore entitled in the present case to conclude that the Neighbourhood Plan satisfied basic condition 8(2)(e) of Schedule 4B to the 1990 Act as it was in conformity with such strategic policies as were contained in development plan documents notwithstanding the fact that the local planning authority had not yet adopted a development plan document containing strategic polices for housing. Further, the examiner was entitled to conclude that condition 8(2)(d) of Schedule 4B to the 1990 Act was satisfied. That condition requires that the making of the neighbourhood development plan “will contribute to the achievement of sustainable development”. The examiner was entitled to conclude that a neighbourhood plan that would provide for an additional 455 dwellings, in locations considered to be consistent with sustainable development, did contribute to the achievement of sustainable development notwithstanding that others wanted more growth and development plan documents in future might provide for additional growth. Similarly, the examiner was entitled to conclude that having regard to national guidance and advice, including the Framework, it was appropriate to make the neighbourhood plan even though there might, in future, be a need for further growth. I reach that conclusion for the following reasons.

The Statutory Language

[59]First, as a matter of statutory language, there is nothing in the provisions of either Schedule 4B to the 1990 Act or the provisions of the 2004 Act governing neighbourhood development plans to support the contention that a neighbourhood development plan cannot include policies dealing with the use and development of land for housing in the absence of a development plan document setting out strategic policies on housing issues. Section 38(A) of the 2004 Act provides that a neighbourhood plan may include “policies (however expressed) which relate to the development and use of land”. The constraint is that they must be in general conformity with “the strategic policies contained in” the development plan documents (paragraph 8(2)(e) of Schedule 4B to the 1990 Act). That condition is dealing with a situation where there are in existence strategic policies and they are contained in a development plan document and there is a conflict between those policies and the policies contained in a neighbourhood development plan. The condition is not dealing with a situation where there are no strategic policies dealing with particular issues contained in a development plan document. The condition is not worded in terms that a neighbourhood development plan cannot include policies dealing with particular issues unless and until a development plan document is brought into existence containing strategic policies on such issues.[60]Similarly, paragraph 8(2)(d) of Schedule 4B to the 1990 Act refers to a plan which “contributes to the achievement of sustainable development”. That language does not indicate that a neighbourhood development plan which does contribute to sustainable development cannot be approved because a future development plan document might require further development. Paragraph 8(2)(a) of Schedule 4B refers whether, having regard to national policies and advice contained in guidance, “it is appropriate” to make the neighbourhood development plan. That language, again, does not preclude an examiner from considering that it is appropriate to approve a neighbourhood development plan because future development plan documents might require the provision of further development.

The Statutory Framework

[61]Secondly, in my judgment, that interpretation of paragraphs 8(2)(a), (d) and (e) of Schedule 4B to the 1990 Act is consistent with the statutory framework. That statutory framework operates as follows. Part 2 of the 2004 Act contemplates that local planning authorities will have a local development scheme which will specify the documents which are to be development plan documents. Those documents must, taken as a whole, set out the local planning authority’s policies which relate to development and the use of land in their area (see section 17(3) of the 2004 Act). Those development plan documents will form part of the development plan.[62]Qualifying bodies may now initiate the process of making a neighbourhood development plan. That plan, too, will set out policies, however, expressed in relation to the development and use of land in the neighbourhood (see section 38A(2) of the 2004 Act). The neighbourhood development plan will also be part of the development plan.[63]There needs to be a method of dealing with situations where a development plan document sets out certain policies dealing with land use and a neighbourhood plan also sets out policies relating to the same land use. That is done by ensuring that an examiner cannot recommend that a neighbourhood plan be put to a referendum unless he is satisfied that the neighbourhood plan meets the basic conditions in paragraph 8(2) (see paragraph 10(4) of Schedule 4B to the 1990 Act). That requires the examiner to consider, amongst other things, if the neighbourhood plan is in general conformity “with the strategic policies contained in the development plan” documents (see paragraph 8(2) of the Schedule 4B to the 1990 Act, read with paragraph 17).[64]If there are policies contained in a development plan document, and they are strategic policies, then the neighbourhood development plan must be in general conformity with them. If they are not in conformity with the strategic policies the examiner would not be able to be satisfied that the basic condition in paragraph 8(2)(e) was satisfied.[65]The neighbourhood development plan may include policies relating to the use and development of land, for example, policies indicating the areas to which development should normally be directed or the allocation of land for particular purposes. There may be no strategic policies contained in a development plan document relating to particular matters. The condition in paragraph 8(2)(e) does not prevent a neighbourhood development plan including polices dealing with the use or development of land for its area for the purposes of housing simply because the development plans documents do not yet include relevant strategic policies dealing with housing issues. Rather, the condition in paragraph 8(2)(e) is concerned with ensuring that the neighbourhood plan conforms with the strategic policies that are contained in the development plan documents.[66]In the event that the local planning authority subsequently makes a development plan document that does include strategic policies, that document will be part of the development plan and, as a later policy, will prevail over any inconsistent policies in the earlier neighbourhood development plan: see section 38(5) of the 2004 Act. Furthermore, a local planning authority remains under a duty to keep its development plan documents under review (see section 13 of the 1990 Act). If it finds, for example, that housing needs in its area are not being met, it should review its development plan documents and any later policies will prevail over the earlier neighbourhood development plan policies.[67]In addition, if a neighbourhood development plan policy becomes out of date that may be a material consideration justifying departure from the policy and the grant of planning permission for a development even though the proposed development would not accord with the neighbourhood development plan policy. That would be a matter for the decision-maker considering an application for planning permission, or an inspector on an appeal against a refusal of planning permission, and would depend upon a consideration of all relevant material considerations. Consequently there is nothing in that statutory framework to indicate that a neighbourhood development plan cannot include policies relating to the use and development of land in its area for housing in the absence of a development plan document prepared by the local planning authority setting out strategic policies for housing.

The Existing Case Law

[68]Thirdly, that interpretation is consistent with the decision in BDW Trading v Cheshire West and Chester Borough Council [2014] EWHC 1470. There, essentially, the same contention was advanced as is advanced on behalf of the claimant in the present case. The claimant in the earlier case was contending that a neighbourhood development plan, as modified, that dealt with the allocation of a certain number of homes within or immediately adjacent to the village could not be adopted in advance of the adoption of a development plan document (see policy 1 set out in paragraph 21 of the judgment, as proposed to be modified as recorded in paragraph 36 of the judgment). The contention was that the adoption of a neighbourhood plan allocating housing could not satisfy the condition in paragraph 8(2)(e) in advance of the adoption of the relevant development plan document (see paragraph 77 of the judgment). At paragraph 82, Supperstone J. accepted the contrary submission, namely that:
“the only statutory requirement imposed by Condition (e) is that the neighbourhood plan as a whole should be in conformity with the plan as a whole. Whether or not there was any tension between one policy in the Neighbourhood Plan and one element of the emerging Local Plan was not a matter for the Examiner to determine.”
[69]A similar position, by analogy, was also recognised in Gladman v Wokingham Borough Council [2014] EWHC 2320 (Admin). That concerned two different development plan documents rather than a development plan document and a neighbourhood development plan but the position is analogous. In that case, one development plan document, the Core Strategy, was out of date and did not provide an objective assessment of housing needs. A new development document would be required to do that. A second development plan document dealt with the allocation of sites for the amount of housing already recognised as being needed in the Core Strategy. The court held that an inspector assessing the soundness of a development plan document dealing with the allocation of sites for housing which was recognised as being needed was not prohibited from making a development plan document for that purpose simply because another development plan document may need to be updated in due course to provide for further additional housing: see paragraph 62 of the judgment.

The Framework

[70]Fourthly, there is, in truth, no inconsistency between the interpretation adopted in this case of the requirements of the basic conditions in paragraph 8(2) of Schedule 4B to the 1990 Act and the guidance contained in the Framework, properly interpreted, and read against the statutory background.[71]In relation to the construction of paragraph 8(2) of Schedule 4B to the 1990 Act, it is important to bear in mind that the Framework is government guidance and cannot alter the meaning of the relevant statutory provisions contained in an Act of Parliament. Further, government guidance issued in March 2012 is not of assistance in interpreting statutory provisions enacted by Parliament by the Localism Act in 2011.[72]In any event, the Framework, read as a whole, is not inconsistent with the approach adopted by the examiner to paragraph 8(2)(e) nor for that matter to paragraphs 8(2)(a) and (d) of Schedule 4B to the 1990 Act. Read properly, and as a whole, and in the context of the statutory framework, the Framework does not preclude a neighbourhood development plan policy dealing with the use and development of land for housing in the absence of a development plan document dealing with those issues.[73]Paragraphs 47 and 156 to 159 of the Framework are dealing with the preparation of what the Framework calls Local Plans, that is, development plan documents. It is in that context, for example, that local planning authorities are given guidance in paragraph 156 that they should set out their strategic priorities to deliver the homes and jobs needed and in paragraph 159 that local planning authorities should carry out a strategic housing market assessment to asses their full housing needs. It is in that context that local planning authorities, in order to boost significantly the supply of housing, must ensure that their Local Plan meets the full, objectively assessed need for housing (paragraph 47 of the Framework). Those, and other particular paragraphs, are not specifically giving guidance to a qualifying body on the preparation by it of a neighbourhood development plan which may include policies relating to the development and the use of land in their area. Such a plan may well include policies on the use of land for housing and where development in the form of housing should be allocated. The qualifying body is not, however, involved in the process of preparing a development plan document dealing with those issues.[74]Nor does it assist to describe the neighbourhood plan as “in effect” setting “strategic policies” for housing and then indicating that the Framework provides that where such policies are to be developed, there should be an objective assessment of housing need and the neighbourhood plan does not, or cannot, provide for that. That is to elide two different legal concepts. On the one hand, there are development plan documents prepared by a local planning authority, in accordance with the process set out in Part 2 of the 2004 Act. Those development plan documents should include the local planning authority’s policies relating to the use and development of land. Some of those policies may properly be described as “strategic policies”. On the other hand, policies also relating to the use or development of land may be included by a qualifying body in a neighbourhood development plan. They are not policies in a development plan document. They cannot be “strategic policies contained” in a development plan document. No matter how the neighbourhood policies are described (and even if they are described as “strategic”) they are not strategic polices contained in a development plan document. Put another way, policies included within a neighbourhood development plan may deal with the use and development of land for housing. In the absence of any development plan document dealing with housing, those neighbourhood development plan policies may, in practice, be the only policies dealing with the use and location of land for housing. But the neighbourhood development plan policies do not become, and do not have effect as if they were, strategic policies in a development plan document simply because there is, as yet, no development plan document in existence providing policies in relation to those aspects of the use and development of land.[75]It is correct that paragraph 184 of the Framework deals with neighbourhood development plans. That paragraph does provide that the ambitions of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. It is for that reason that the paragraph provides that local planning authorities should set out clearly their strategic policies for their area and should ensure that there is an up-to-date Local Plan (that is, up to date development plan documents) in place as quickly as possible. But the Framework does not say that if a local planning authority has not, in fact, been able to put in place an up-to-date strategy dealing with housing or some other aspect of land use or development, that a neighbourhood plan cannot, in the interim, put in place policies for its area.[76]Similarly, paragraph 16 of the Framework provides that the application of the presumption in favour of sustainable development means that neighbourhoods should support the strategic development needs “set out in Local Plans” (that is, in development plan documents) “including policies for housing and economic development”. That does not preclude the neighbourhood plan from setting out policies governing the use and development of land for housing where there is, at present, no development plan document setting out such policies. Indeed, the wording of the paragraph again focuses on what is included in a development plan document at present. There is nothing to indicate that the Framework intended to prevent the adoption of neighbourhood development plan policies which do make a contribution to sustainable development in relation to the provision of additional housing considered to be needed simply because there is at present no development plan document setting out policies on those issues.[77]Dealing with the way in which the claimant puts the argument in each of the claimant’s three grounds as advanced in the skeleton argument, therefore, the answer, in brief, is this. In relation to ground 2, an examiner is not prevented from concluding that the basic condition in paragraph 8(2)(e) of Schedule 4B to the 1990 Act is met in circumstances where a development plan document does not include strategic policies on an issue of land use or development such as housing. An examiner will only be able to conclude that the basic condition in paragraph 8(2)(e) is not met where there are in existence strategic policies which are contained in a development plan document and the polices in the neighbourhood plan are not in general conformity with the strategic policies contained in the development plan document.[78]In relation to grounds 1 and 3, there is nothing to prevent the examiner being satisfied that the neighbourhood plan in the present case satisfies the basic conditions in paragraph 8(2)(a) of Schedule 4B to the 1990 Act, that is, whether having regard to national policies and advice contained in guidance, it is appropriate to make the neighbourhood plan, or paragraph 8(2)(d) of that Schedule, that is whether the neighbourhood plan contributes to the achievement of sustainable development. As indicated, there is nothing in the Framework which prevents a neighbourhood development plan from including policies on housing in circumstances where there is, at present, no up-to-date development plan document dealing with housing. Further, the Neighbourhood Plan proposed the allocation of land for the provision of 455 additional dwellings and allocated them on sites considered to be consistent with sustainable development. The neighbourhood plan was identifying an additional amount of housing, which was needed, and deciding where that should be located. The examiner was entitled to conclude that the draft Neighbourhood Plan “contributes to the achievement of sustainable development” – the requirement in paragraph 8(2)(d) of Schedule 4B to the 1990 Act. He was entitled to conclude that “having regard to the national policies and advice contained in guidance” it was “appropriate” to make the neighbourhood plan the requirement in paragraph 8(2)(a). The fact that there may, in due course, be a new development plan document which calls for even more housing and which may require either additional sites within the settlement boundary or an alteration of the boundary does not mean that the current neighbourhood development plan is inconsistent with the Framework.[79]For completeness, I note that the claimant sought to rely on certain comments made by a Minister during debates in the House of Commons. The legislative provisions are clear and unambiguous. Reference to Hansard is neither necessary, nor appropriate, for the purpose of interpreting the relevant statutory provisions. THE SECOND ISSUE – DID THE INSPECTOR FAIL TO HAVE REGARD TO NATIONAL POLICY IN ASSESSING THE ADEQUACY OF THE SITE ALLOCATION[80]The claimant contends that the examiner failed to have regard to certain provisions of Planning Practice Guidance dealing with the allocation of sites. The particular provision of Planning Practice Guidance emerged during the course of the preparation of the Neighbourhood Plan. The Claimant in its skeleton argument stated that it was in draft format from August 2013 and it was, it appears, published by being placed on a governmental department web-site on 6 March 2014. The paragraph on which reliance is placed is paragraph 42 of that guidance which states that:
“A neighbourhood plan can allocate sites for development. A qualifying body should carry out an appraisal of options and an assessment of individual sites against clearly identified criteria. Guidance on assessing sites and viability can be found…” [and a link to further guidance, entitled Housing and economic land availability assessment is provided].”
[81]The claimant contends that the examiner could not be satisfied that condition 8(2)(a) of Schedule 4B to the 1990 Act was met as he did not have regard to national policies and advice contained in that guidance in deciding that it was appropriate to make the Neighbourhood Plan.[82]Those preparing the draft neighbourhood plan did carry out an assessment of sites and published a site assessments report in December 2013. That involved assessment of sites identified in the local planning authority’s 2013 Strategic Housing Land Availability Assessment. Where a site was assessed as suitable, then its availability, achievability and acceptability were assessed. Where the site was considered unsuitable, no further assessment was made. The report set out the sites assessed. They included the three sites proposed by the claimant. In each case, the sites were considered unsuitable and the assessment indicates that this was because the site lay outside the proposed settlement boundary and also gave additional reasons. In relation to one site, Glebe Farm, for example, the assessment noted that the site was not within the settlement boundary and also that it was in the “most sensitive landscape character area that surrounds the south of the town”. In relation to another of the claimant’s sites, that was not suitable as it was not within the proposed settlement boundary and was part of “an extensive tract of land in the open countryside”.[83]The parts of the Planning Practice Guidance, and related advice, relied upon were not in final published form at the time that the Town Council carried out the site assessment. It did not therefore have regard to that advice. The guidance was published, and was in force, by the time that the examiner came to examine the draft Neighbourhood Plan and he was required to have regard to it.[84]The examiner did, however, have regard to the Planning Practice Guidance. He identified it as one of the documents that he had considered. The paragraph relied upon was specifically referred to in the public hearing that he held. In the circumstances, the examiner clearly had regard to the relevant guidance. He obviously could not consider whether the Neighbourhood Plan itself had been drafted with the published guidance in mind as that guidance was not in a final published form at the time the Neighbourhood Plan was drafted. Having identified the relevant guidance, however, the examiner did himself consider whether the site allocation process that had been undertaken was appropriate. He noted that there were criticisms made of that process. However, he considered that the allocations had emerged through a Neighbourhood Plan that had undergone robust consultation (which he had described in detail) and enjoyed significant support. Further, he considered the question of whether the allocated sites were deliverable (that is, would actually be able to provide the anticipated number of dwellings). In those circumstances, the examiner had regard to relevant national policy and advice in guidance. Having had regard to that, he considered that it was appropriate to make a Neighbourhood Plan which included the site allocations set out within it. The examiner was, therefore, entitled to conclude that the basic condition in section 8(2)(a) of Schedule 4B to the 1990 Act was satisfied, so far as site allocation was concerned.

THE THIRD ISSUE – THE STRATEGIC ENVIRONMENTAL ASSESSMENT REPORT

[85]The condition in paragraph 8(2)(f) of Schedule 4B to the 1990 Act requires the inspector to be satisfied that the Neighbourhood Plan does not breach and is otherwise compatible with obligations derived from European Union law.[86]Article 3 of Directive 2001/42/EC (“the Directive”) provides that an environmental assessment shall be carried out, in accordance with the requirements in Article 4 to 9 of the Directive, for plans and programmes which are likely to have significant environmental effects. Article 5 of the Directive provides, so far as material that “1. Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely 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 are identified described and evaluated…….” “2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in the process to avoid duplication. ….. “4. The authorities referred to in Article 6(3) shall be consulted when deciding on the scope and level of detail of the information which must be included in the environmental report.” …..[87]Article 6(3) of the Directive requires Member States to designate the authorities to be consulted which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes. There are provisions for public consultation and consultation with the bodies identified by national authorities pursuant to Article 6(3) of the Directive.[88]The Directive is implemented by the Environmental Assessment of Plans and Programmes Regulations 2004 (“the Implementing Regulations”). Regulation 4 of the Implementing Regulations identifies certain statutory bodies as consultation bodies. These include, for example, Natural England. Regulation 12(5) requires that the consultation bodies are consulted on “the scope and level of information that must be included in the report”. Regulation 13 provides for consultation on the report with the consultation bodies and the public. Regulation 12 of the Implementing Regulations reflects the obligations in Article 5 of the Directive including, in particular, the requirement that the strategic environmental assessment report includes the information “reasonably required to evaluate the likely significant effects of the plan or programme and reasonable alternatives “taking account the objectives and the geographical scope of the plan or programme”[89]The case law emphasises that a report will satisfy the requirements of the Implementing Regulations, and hence the Directive, if the information included in the report is that which is reasonably required. Further information may well emerge during the consultation and the relevant body may well have a fuller picture of the position than it did at the time that the report was prepared. The emergence of new information does not mean that the report was inadequate. See, generally, R (Shadwell Estates Ltd.) v Thetford District Council [2013] EWHC 12 (Admin) at paragraphs 74 to 78. A reviewing body will need to be alert to scrutinise the choices regarding reasonable alternatives to ensure that the plan-making body is not seeking to avoid its obligations and does not improperly limit the range of alternatives which are to be identified (R (Ashdown Forest Economic Development Llp) v Secretary of State for Communities and Local Government and others [2014] EWHC 406 (Admin) and Heard v Broadland District Council and others [2012] EWHC 244 (Admin.).[90]The Town Council did consult with the relevant statutory bodies and did prepare a strategic environmental assessment scoping report. Thereafter, it did consult upon and prepare a strategic environment assessment report. The report deals with the neighbourhood area. It sets out the objectives of the Neighbourhood Plan and the environmental objectives against which the plan was assessed. In relation to reasonable alternatives, it had considered the option of not having a policy at all (save for Policy 2, as not having a spatial plan for the town was not seen as a reasonable option). The strategic environmental assessment did identify alternatives to the proposed settlement boundary, namely extending the town beyond the proposed boundaries in any one of a number of directions south-west, south, south-east, east and north east. The report considered that an alternative strategy based on expansion in one of those directions would score badly against the proposed settlement boundary, particularly in relation to the making the best use of land within the current settlement form and the consequences arising from encroaching into the open countryside together with the need for car trips to access services.[91]The claimant contends that the examiner erred in concluding that the strategic environmental assessment report satisfied the requirements of EU law. The claimant criticised the assessment of reasonable alternatives as vague and lacking any precision. The claimant then contends that the examiner did not grapple with the legal requirements of the Directive.[92]In my judgment, the examiner did address the requirements of the Directive. He recognised that the Neighbourhood Plan must be compatible with the Directive but noted that it was not required to include more detail than was appropriate for the content and level of detail in the plan. He considered the strategic environment assessment report itself. He reviewed the consultation process that had been undertaken. He noted that the statutory bodies (that is the consultation bodies designated in accordance with Article 6(3) of the Directive) had not objected to the strategic environmental assessment. He considered that the Town Council had sought to assess environmental impacts “at a level of detail and using resources appropriate for the content and level of detail in the Neighbourhood Plan”. He was satisfied that the Neighbourhood Plan did meet the requirements of EU law. In my judgment, that was a conclusion that was open to the examiner. The claimant may be critical of the level of detail and may wish for more detail, particularly, on why the settlement boundary was drawn as it was and why sites outside the settlement boundary were not allocated for housing. The examiner was entitled to conclude, however, that this Neighbourhood Plan, dealing with the allocation of 455 new houses, did include a sufficient level of detail explaining that the allocation was based on the current form of the town whereas an alternative strategy, based on expansion in other directions, would have greater environmental impact.

THE FOURTH ISSUE – THE ADEQUACY OF THE EXAMINER’S REASONS

[93]The examiner must recommend that the draft Neighbourhood Plan is, or is not, to be submitted to a referendum (with or without modifications): see paragraph 10(2) of Schedule 4B to the 1990 Act. The examiner may only recommend that it is submitted to a referendum if he considers that it meets the basic conditions in paragraph 8(2) of that Schedule (see paragraph 10(4) of Schedule 4B. He must(a) give reasons for each of his recommendations and(b) contain a summary of his main findings (see paragraph 10(6) of Schedule 4B to the 1990 Act).[94]In those circumstances, it can be anticipated that the examiner would provide adequate, intelligible reasons as to why he considered that each of the basic conditions were met. The general principles governing the adequacy of reasons are set out in South Buckinghamshire District Council v Porter (No.2) [2004] 1 W.L.R 1953 especially at paragraph 36: “36 The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.[95]In my judgment, the reasons given by the examiner are clear, adequate and intelligible. He considers the policies of the Neighbourhood Plan in detail. He identifies the conditions that need to be meet. He sets out his reasons for concluding why the conditions are met and why it is appropriate that the Neighbourhood Plan go forward to a referendum. The examiner does set out his conclusions and reasons on the principal issues. In relation to the question of whether he should recommend that the Neighbourhood Plan go to a referendum in the absence of an up-to-date development plan document setting out strategic policies on housing, he correctly explains that it is not his role to assess the conformity of policies in the Neighbourhood Plan with strategic policies that do not yet exist. He explained how the Neighbourhood Plan contributed to the achievement of sustainable development by providing for a level of growth in Winslow whilst affording protection to the countryside around it. He explained why he considered that it was appropriate for the Neighbourhood Plan to go to a referendum on the basis of the site assessment that had been carried out: he was satisfied that the allocations had been the subject of robust consultation and enjoyed significant support and were deliverable. On the strategic environmental assessment, he was satisfied that the strategic environmental assessment report did consider the environmental impact at the level of detail appropriate to the content of the Neighbourhood Plan. Further, he was reinforced in his view that the Neighbourhood Plan satisfied the requirements of EU law by the fact that there had been no objections to it from the statutory bodies, that is, those bodies with specific responsibilities in relation to the environment. In the circumstances, the reasons were adequate. They do explain why the examiner recommended that the Neighbourhood Plan should go to a referendum with some modifications. There is nothing to give rise to any doubt as to whether the examiner failed to understand a relevant legal obligation or a relevant policy. The claimant does know why the Neighbourhood Plan includes the policies that it does and why its sites have not been allocated for housing.

CONCLUSION

[96]Permission to apply for judicial review should be granted to the claimant on the six grounds of challenge raised as they are arguable grounds but the claim for judicial review should be dismissed. A neighbourhood development plan may include policies relating to the use and development of land for housing in its neighbourhood even in the absence of any development plan document setting out strategic housing policies. The examiner was therefore entitled to conclude that the draft Neighbourhood Plan satisfied the requirement in paragraph 8(2)(e) of Schedule 4B to the 1990 as it was in general conformity with such strategic policies as were contained in the development plan documents. The examiner was also entitled to conclude that the Neighbourhood Plan, which provided for 455 new dwellings in a sustainable way, did make a contribution to the achievement of sustainable development and satisfied the condition in paragraph 8(2)(d) of Schedule 4B to the 1990 Act. The examiner did have regard to national planning policy, including the Framework and the Planning Practice Guidance, and the further guidance referred to in that guidance, and was entitled to conclude that it was appropriate to recommend that the Neighbourhood Plan should be submitted to a referendum. He was entitled to conclude that the strategic environmental assessment report satisfied the requirements of EU law so that the condition in paragraph 8(2)(f) of Schedule 4B to the 1990 Act was satisfied. He gave adequate, intelligible reasons for his recommendations.[97]In summary, therefore the examiner was entitled to recommend that the draft Neighbourhood Plan should proceed to a referendum. The Council was entitled to make the Neighbourhood Plan in the light of the vote in favour of the Neighbourhood Plan at that referendum. Consequently, the Winslow Neighbourhood Plan is lawful. This claim for judicial review is therefore dismissed.

Cited in 13 later judgments

and 4 more of the most senior