Wilbur Developments Ltd, R (On the Application Of) v Hart District Council [2020] EWHC 227 (Admin)

“Preparing and reviewing plans 31. The preparation and review of all policies should be underpinned by relevant and up-to-date evidence. This should be adequate and proportionate, focused tightly on supporting and justifying the policies concerned, and take into account relevant market signals.”

“Can a neighbourhood plan come forward before an up-to-date Local Plan is in place? Neighbourhood plans, when brought into force, become part of the development plan for the neighbourhood area. They can be developed before or at the same time as the local planning authority is producing its local plan ….. A draft neighbourhood plan or Order must be in general conformity with the strategic policies of the development plan in force if it is to meet the basic condition. Although a draft neighbourhood plan or Order is not tested against the policies in an emerging Local Plan the reasoning and evidence informing the Local Plan process is likely to be relevant to the consideration of the basic conditions against which a neighbourhood plan is tested. For example, up-to-date housing needs evidence is relevant to the question of whether a housing supply policy in a neighbourhood plan or Order contributes to the achievement of sustainable development. Where a neighbourhood plan is brought forward before an upto-date Local Plan is in place the qualifying body and the local planning authority should discuss and aim to agree the relationship between policies in: • the emerging neighbourhood plan • the emerging Local Planthe adopted development planwith appropriate regard to national policy and guidance. The local planning authority should take a proactive and positive approach, working collaboratively with a qualifying body particularly sharing evidence and seeking to resolve any issues to ensure the draft neighbourhood plan has the greatest chance of success at independent examination. The local planning authority should work with the qualifying body to produce complementary neighbourhood and Local Plans. It is important to minimise any conflicts between policies in the neighbourhood plan and those in the emerging Local Plan, including housing supply policies. This is because section 38(5) of the Planning and Compulsory Purchase Act 2004 requires that the conflict must be resolved by the decision maker favouring the policy which is contained in the last document to become part of the development plan. ….”

“General conformity with the strategic policies contained in the development plan What is meant by ‘general conformity’? When considering whether a policy is in general conformity a qualifying body, independent Examiner, or local planning authority, should consider the following: • whether the neighbourhood plan policy or development proposal supports and upholds the general principle that the strategic policy is concerned with • the degree, if any, of conflict between the draft neighbourhood plan policy or development proposal and the strategic policy • whether the draft neighbourhood plan policy or development proposal provides an additional level of detail and/or a distinct local approach to that set out in the strategic policy without undermining that policy • the rationale for the approach taken in the draft neighbourhood plan or Order and the evidence to justify that approach.”

“HK6Hook to Newnham Gap Development in the Hook to Newnham Gap, as identified on Fig 8.13.1, will only be permitted where it does not lead to the physical or visual coalescence of these villages, or damage their separate identity, either individually or cumulatively with other existing or proposed developments.”

“HK7: Views Development must not adversely impact on the views described below: From the Hook settlement boundary towards the north-east and east across the valley of the River Whitewater and its setting must be protected as part of the overall strategy to protect the environment and amenity of the Whitewater Valley. From the Hook settlement boundary to the west across the Gap towards Newnham must be protected as part of the overall strategy to protect the environment and amenity of this area of open countryside and prevent coalescence between the settlements of Hook and Newnham. From the east side of Newnham towards the west side of the Hook settlement must be protected as part of the enjoyment of the public right of way as a countryside amenity within the Gap between these two settlements.”

“Important views 8.17 There are some particularly important views both into and out of the village of Hook and these are indicated on Figure 8.16.1. They were originally identified in the Hart Urban Characterisation and Density Study (2010) and are amplified below. 8.18 … 8.19 On the west side of the settlement the landscape is irregular in pattern and comprises woodland and open fields with hedgerow boundaries which provides enjoyable views towards Newnham … There is a well-used public right of way (PRoW) across the gap between Newnham and Hook and the view can be appreciated from footpaths running along the edge of Hook. As you leave Newnham along the PRoW the boundary of Hook quickly comes into view … and there are well-established trees and hedges which provide a much valued and pleasing view of the west side of hook adding to the enjoyment of this leisure route.”

“Hook to Newnham Gap This policy seeks to restrict development on land situated between Hook and the village of Newnham, which is illustrated as part of Figure 8.13.1. The purpose for this policy is to avoid physical coalescence between the two settlements, and follows a format which is expressed as part of the Policy NBE2 of the emerging Hart Local Plan. The policy also suggests that if a new settlement is progressed around Murrell Green/Phoenix Gren/Winchfield, there will be a need to revisit this policy, to ensure that a sufficient gap to the east of Hook is provided for. Herein lies RPS’ concerns with this policy. This is a strategic matte [sic] and one which is inherently bound to the future of the emerging Local Plan. RPS queries why it is necessary to duplicate a strategic plan policy in any event, though the broader concern relates to the potential for change in the Local Plan and how this may effect Policy HK[6] of the HNP. Although the Local Plan has been through Examination in Public over the November/December months of 2018, there remains significant objection to the principle of Policy NBE2, which may be subject to change in the future. Accordingly, it would be inappropriate to include a policy within the HNP which may affect the implementation of the higher order Development Plan. It is therefore that this policy is deleted from the Plan, to prevent he frustration of the emerging Local Plan and to ensure compliance with the basic conditions of the TCPA 1990.”

“Views This policy is unrecognising of the levels of protection afforded to landscape and conflates the consideration of landscape and coalescence. Land to the west of Hook is not of any landscape value and coalescence here cannot reasonably be mitigated here through the consideration of views. In accordance with the NPPF paragraph 171 plans should distinguish between the hierarchy of landscape and environmental value and allocate land with the least environmental or amenity value. Policy HK[7] suggests that these views should be protected as part of the overall strategy to prevent coalescence between the settlements of Hook and Newnham. This reasoning is not related to environmental interests or amenity value and therefore should not be treated as a landscape value consideration. Furthermore, the policy is prejudicial to the Local Plan process as the Council’s preferred option would be to see development to the east of Hook. Protecting views to the east would therefore create conflict with the Local Plan. RPS remains of the view that the Owens Farm site is suitable and the landscape quality here is of limited value and not worthy of protection over other landscapes within the district. In either scenario, this policy has the potential to frustrate the strategic delivery of growth associated with the Local Plan. The policy is therefore not in accordance with clause E of the basic conditions (NPPF ID: 41-065-20140306) which requires conformity with strategic plans. The policy should therefore be deleted.”

“Settlement Gaps Policy [HK6] The Parish Council should be aware that following discussion at the Local Plan examination on Policy NBE2 Gaps, the Examiner identified concerns with the justification for this Policy and for identifying gaps without defined boundaries. The Council is therefore proposing a Local Plan Modification to delete Policy NBE2 and the gap designations on the local plan maps. Additional wording regarding the need to ensure that development does not lead to the physical or visual coalescence of settlements, or would damage settlement’s separate identity, either individually or cumulatively with other existing or proposed development is proposed as a Modification to be added to Policy NBE3 Landscape. Clearly these Modifications are subject to the agreement of the Local Plan Inspector. If these modifications are incorporated into the final Local Plan this means that whilst Local Gaps can still be identified in neighbourhood plans they will need to be fully justified and evidenced as part of the neighbourhood plan process. At present it is not clear what evidence is used to justify the gap boundary though clearly this could now include the landscape related studies that form part of the Local Plan evidence. We are happy to provide further information if that would be helpful. To reflect existing Policy NBE2 and the proposed amendment set out above, the wording of Policy [HK6] should be amended to “…is designated to prevent physical or visual coalescence of the village…”

“The protection of these views will need to be properly evidenced – see for example the Rotherwick Neighbourhood Plan. Are all of these views from locations that are freely accessible to the general public? ….. It may be clearer to reword this Policy so that it refers to development not adversely affecting the views at the start of the Policy rather than seeking that they must be protected….”

“These views were identified in the Hart Urban Characterisation and Density Study (2010) as being important. They have been incorporated into the Neighbourhood Plan and view B added to reflect the large development to the east of the village. The views are all available to the general public. Amended text”

“Strategic Environmental Assessment As set out in the PPG (Paragraph 027, Reference ID: 11-02720150209) there is no blanket requirement for a Neighbourhood Plan to be subject to a strategic environmental assessment and that this would only be required in limited circumstances where a neighbourhood plan is likely to have significant environmental effects. Given that the HNP does not allocate any land for housing, or for any other use, it is not clear why a SEA has been undertaken in this instance. In addition, as the HNP does not allocate land for housing, it is unclear why it refers to the consideration of ‘reasonable alternatives’. RPS considers that the assessment of reasonable alternatives within the SEA is also lacking in detail and clarity and simply seeks to assess the impact of new development on unspecified sites outside of the settlement boundary. RPS would typically expect such an assessment to identify potential development sites and undertake a more detailed assessment of their potential impacts, both individually and collectively. With specific regard to Policy HK6: Hook to Newnham Gap, it is clear that no assessment of the gap has been undertaken and that it has been included as it replicates Policy NBE2 of the HDLP (Paragraph 19 of the SEA). As set out above, this Policy is due to be deleted from the local plan and as such it should also be deleted from the HNP. As a minimum RPS would expect the reasonable alternatives assessment to consider whether the full extent of the land should be identified within the Gap or whether a smaller area of land would be sufficient to prevent the coalescence of Hook and Newnham. …”

“The Local Plan Inspector considered the inclusion of a “gaps”

“Clearly, development on the appeal sites would not result in the physical coalescence of the two settlements. However, if that was to be regarded as the ultimate benchmark then, taken to its conclusion, the Gap could have been much more narrowly defined in the first place, with development of the two settlements being permitted to advance to within metres of each each other provided a gap were maintained. It was not, however, The Gap’s function, as noted above, is wider than that. Given the impacts from the PROW the proposed development would, in my judgment, undermine the function of the Gap and result in an increased perception of coalescence, with the further advance of Hook towards its smaller neighbour. This would, in turn, further erode the distinct identities of the two settlements, notably with regard to Newnham’s sense of rural isolation and separation. I conclude therefore that the appeal proposal would have an adverse impact upon the Local Gap between Newnham and Hook.”

“Policy HK6: Hook to Newnham Gap 115 Local Plan Policies CON19 (“Strategic Gaps – General Policy”) and CON21 (“Local Gaps”) provide protection from inappropriate development within gaps that separate settlements from one another. Policy CON21 includes a gap between Hook and Newnham. 116 Policy HK6 seeks to maintain a gap between Hook and Newnham, in order to prevent the physical and visual coalescence of the two settlements. In this respect, Policy HK6 is in general conformity with the Local Plan. 117 Whilst I note that a representation has been made in respect of the fact that the emerging Local Plan might not include a gap between these two settlements, the emerging Local Plan is precisely that. It is not an adopted document and its precise final content is, as yet, unknown. The Neighbourhood Plan is not examined against emerging planning policy. 118 Whilst the adopted Local Gap policies in the Local Plan pre-date the publication of the first Framework in 2012, I note that a Planning Inspector, in dismissing a planning appeal a number of years after the publication of the Framework [Reference: APP/N1730/A/14/2226609.] referred to the development proposal as having an adverse impact on the Local Gap between Hook and Newnham. The Inspector did not consider the Local Gap policy to run counter to the requirements of national policy and national policy, in the form of the Framework against which this Neighbourhood Plan must be examined states that planning policies should contribute to and enhance the natural and local environment by: “…recognising the intrinsic character and beauty of the countryside…” (Paragraph 170, the Framework) 119 The supporting text for Policy HK6 identifies the important role of the countryside around Hook in respect of, amongst other things, defining local character, providing open space and supporting wildlife. 120 The precise boundary of the gap shown on Figure 8.13.1 has emerged through the plan-making process and I note earlier in this Report that the Neighbourhood Plan was supported by an appropriate consultation process. 121 Paragraph 29 of the Framework gives communities the power to develop a shared vision for their area and the community has sought to maintain an important gap between Hook and Newnham. The submitted information provides evidence in respect of how the boundaries of the proposed gap, supported by the community, were determined. 122 There is no requirement for the Neighbourhood Plan to allocate land for development and there is no substantive evidence before me to demonstrate that maintaining a gap between Hook and Newnham would, in itself, mean that Hart District would be prevented from providing housing land to meet its needs, or would necessarily result in the Neighbourhood Plan failing to contribute to sustainable development. 123 The wording of the Policy includes a vague reference to “proposed” developments and fails to provide for the balanced consideration of harm and benefits, as required in order for the Neighbourhood Plan to contribute to the achievement of sustainable development. These are matters addressed in the recommendations below. 124 The final sentence of Paragraph 8.14 reads as a policy, which it is not. • Policy HK6, change wording to “…on Fig 8.13.1 should not lead to the physical or visual coalescence of these villages or damage their separate identity.”

“Policy HK7: Views 125 Whilst Policy HK7 identifies general views, it goes on to set out stringent requirements for land to “be protected.”

“2.2 The Examiner’s report was received on 15 July 2019. The report concludes that subject to making the modifications recommended by the Examiner, the Plan meets the basic conditions set out in the legislation and should proceed to a Neighbourhood Planning referendum. The Examiner also recommended that the referendum area was based on the Neighbourhood Area that was designated by the Council in October 2014. 2.3 Having considered each of the recommendations made in the Examiner’s report and the reasons for them, the Council has decided to make the modifications to the Hook Neighbourhood Plan set out in Table 1 below. The Council is satisfied that subject to those changes/modifications which it considers should be made to the Plan as set out in Table 1 below, that the Plan meets the basic conditions set out in the legislation.”

“Development in the countryside between settlements can reduce the physical and/or visual separation of settlements. Development that would result in a perception of settlements coalescing, or which would otherwise damage their separate identity, will be refused. Both the individual effects of any proposals and the cumulative effects of existing and proposed development will be taken into account. Policies to designate specific areas of ‘gaps’ between settlements can be prepared through subsequent Development Plan Documents and Neighbourhood Plans.”

“I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”

“Paragraph 8(2)(a) confers a discretion to determine whether or not it is appropriate that the neighbourhood plan should proceed to be made “having regard” to national policy The more limited requirement of the basic condition in paragraph 8(2)(a) that it be “appropriate to make the plan” “having regard to national policies and advice” issued by SSCLG, is not to be confused with the more investigative scrutiny required by PCPA 2004to determine whether a local plan meets the statutory test of “soundness”.” statutory test of “soundness”.”

“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.”

“57…. South Bucks was concerned with the obligation to give reasons for a decision determining a planning appeal. Such appeals may involve a range of issues raised by a number of parties to do with the planning merits of a proposal for development. By contrast the ambit of an examination into a neighbourhood plan is rather different. Generally, the main focus is on whether or not the basic conditions in paragraph 8(2) of schedule 4B are satisfied, or would be satisfied by the making of modifications to the plan. The level of scrutiny is less than that applied to maters falling within the true ambit of the examination process. 58. …. Thus the statutory scheme delimits the matters which the Examiner and the local planning authority are able to consider, which in turn will affect the application of the obligation to give reasons. At the very least the statutory process will affect what may be considered by the Court to have been the “principal important controversial issues”; they will not necessarily be any matter raised in the representations on the draft plan.”

“… It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is selfevidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision. To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”

“(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)”

“115 Local Plan Policies CON19 (“Strategic Gaps – General Policy”) and CON21 (“Local Gaps”) provide protection from inappropriate development within gaps that separate settlements from one another. Policy CON21 includes a gap between Hook and Newnham. 116 Policy HK6 seeks to maintain a gap between Hook and Newnham, in order to prevent the physical and visual coalescence of the two settlements. In this respect, Policy HK6 is in general conformity with the Local Plan.”

“117 Whilst I note that a representation has been made in respect of the fact that the emerging Local Plan might not include a gap between these two settlements, the emerging Local Plan is precisely that. It is not an adopted document and its precise final content is, as yet, unknown. The Neighbourhood Plan is not examined against emerging planning policy.”

“50 The emerging Hart Local Plan (2016-2032) is at an advanced stage and is likely to be adopted in the near future. Whilst the basic conditions require neighbourhood plans to be in general conformity with the adopted strategic policies of the development plan, Planning Guidance advises [Planning Policy Guidance, Paragraph: 009 Reference ID: 41-009-20160211.] that the reasoning and evidence informing the Local Plan process is likely to be relevant to the consideration of the basic conditions against which the Plan is tested. 51 I note that the Hook Neighbourhood Plan has emerged alongside the emerging Local Plan and that it has taken full account of the reasoning and evidence supporting this emerging District-wide document.”

“iv) “Reasonable alternatives” does not include all possible alternatives: the use of the word “reasonable” clearly and necessarily imports an evaluative judgment as to which alternatives should be included. That evaluation is a matter primarily for the decision-making authority, subject to challenge only on conventional public law grounds. v) Article 5(1)refers to “reasonable alternatives taking into account the objectives… of the plan or programme… ”

“I do not consider that ground three (SEA) is arguable. The Examiner had a discretion as to whether or not something was a reasonable alternative. Given the nature that was being considered, and the fact that this was not a plan allocating land for housing or other development, I do not consider there was anything arguably irrational [in the] Examiner not considering a smaller gap.”