PARK LANE HOMES (SOUTH EAST) LIMITED (R on the application of) v ROTHER DISTRICT COUNCIL [2022] EWHC 485 (Admin)

“(c) Facilitate the limited growth of villages that contain a range of services and which contributes to supporting vibrant, mixed rural communities, notably in relation to service provision and local housing needs, and is compatible with the character and setting of the village; “(d) Allow for small-scale infill and redevelopment, and otherwise enable local needs for housing and community facilities to be met, in other villages;”

“7.60 Development boundaries around settlements are a well-established planning policy tool in East Sussex. They provide a clear and readily understood indication of where development would, and would not, be allowed in principle. Within development boundaries there is a presumption that infilling, redevelopment and changes of use will be acceptable subject to other policies of the plan. 7. 61 They help to focus development and investment into sustainable locations and to protect against intrusive development beyond the substantially built-up areas of towns and villages. 7. 62 Consideration has been given to whether to retain such prescribed limits, or whether to rely on a criteria-based policy. It is found that the level of certainty they afford, for all involved in planning, continues to be highly valued. They reflect the established settlement pattern and provide a useful reference for the application of policies specifically designed to help meet local needs, such as those relating to community facilities and affordable housing. Therefore the use of development boundaries is maintained.”

“Policy RA1: Villages The needs of the rural villages will be addressed by: ….. (v) In order to meet housing needs and ensure the continued vitality of villages, the provision of 1,670 additional dwellings (comprising existing commitments, new allocations and windfalls) in villages over the Plan period 2011 to 2028. This will be located in accordance with Figure 12, subject to refinement in the light of further investigation via the Development and Site Allocations DPD and/or Neighbourhood Plans.”

“12.41 ‘Potential new sites’ in Figure 12 refers to sites expected to be formally allocated via the Development and Site Allocation Plan or Neighbourhood Plans. These will normally comprise development sites accommodating 6 or more dwellings. …. 12. 43 Developments of less than 6 dwellings, on currently unidentified sites, will count towards the overall rural housing numbers total as ‘small-site windfalls’; an estimated allowance for them has been included for years 5-15. Therefore, to avoid double counting, they are in addition to the ‘Potential new sites’ for individual villages.”

“8.9 As well as the preparation of this Plan, a number of Neighbourhood Plans have come forward since the Core Strategy was adopted, all of which embrace site allocations required to meet the housing targets for the settlements that fall within those ‘neighbourhood areas’. 8. 10 At the present time, Neighbourhood Plans have been ‘made’ (or adopted) for [list of villages]. Neighbourhood Plans are also in preparation for Battle …., Burwash, Etchingham and Hurst Green.”

“Policy OVE1: Housing supply and delivery pending plans. Housing sites sufficient to meet the Core Strategy requirement of at least 5,700 net additional homes over the period to 2028 will be met by allocations and other provisions in this Plan and Neighbourhood Plans. No phasing restrictions will be imposed on development allocations, other than for site-specific, normally infrastructure, reasons. Until such time as a Neighbourhood Plan for the relevant settlement with an outstanding Core Strategy housing requirement is in force, planning applications will be favourably considered for development proposals in those settlements where: (i) they contribute to meeting the housing target for that settlement and accord with the relevant spatial strategy; and (ii) the site and development proposals are otherwise suitable having regard to other relevant policies of the Core Strategy, including the considerations in OSS2 and OSS3, and of this Plan.”

“8.17 In view of the fact that the annualised housing requirement has not been achieved to date and that housing delivery is likely to not “catch up” on present projections, it is considered appropriate to not only have a margin of over-provision, particularly in Bexhill where there is a high reliance on a strategic site, but also to avoid unduly deferring the identification of suitable sites and to ensure that planning permissions continue to come forward in a timely manner. 8. 18 The following policy is therefore put forward to make clear the Council’s commitment to increase supply and, as far as it is able, to achieve the actual delivery of homes within the plan period of the Core Strategy.”

“1. General comments on the Neighbourhood Plan itself …… When … BPC submitted their application for Burwash parish to be designated a Neighbourhood Area, it was agreed that the allocation of housing sites to meet the target set out within the adopted Core Strategy was ‘scoped’ into the remit of the Neighbourhood Plan. However, the Burwash NDP does not allocate any housing sites to meet the target of 52 dwellings (seen as a minimum figure), nor does it make any amendments to the existing development boundary to accommodate the outstanding figure for the settlement of Burwash ….” …. “….The residual amount of housing of 22 dwellings to be allocated is highly likely to require a revised development boundary.” “There are two ….. SHLAA sites, Strand Meadow and Shrub Lane (which were categorised as green and amber sites respectively) which have not been allocated with the Plan and there is no clear evidence to support this decision….” ….. “Notwithstanding the comments made above that the BNP does not meet the basic conditions as stated previously in the RDC Regulation 14 comments, in the absence of allocations set out in the NDP, planning applications for development within Burwash Parish will be considered in the context of Policy OVE1 in the DaSa which states ….” [The text of the policy is set out at paragraph 23 of my judgment] “Including allocations within the Neighbourhood Plan ensures positive planning for development in the area and does not leave the parish vulnerable to speculative planning applications. Having a Neighbourhood Plan, which includes housing allocations to meet the outstanding target, offers far better protection from speculative development than without it. When making the application to undertake the Neighbourhood Plan, BPC opted to include allocations within the Plan and as such no respective housing allocations were considered within the District Council’s now adopted DaSA Local Plan. This leaves a ‘planning void’ in Burwash parish, with no possible positive plan-led remedy to fill this void….”

“We are writing to you because we are very concerned that the Cabinet has been asked to make a decision on Monday 2nd November 2020 on the basis of a report and appendix which are inaccurate and, if adopted would leave the District Council at risk. We have not provided a line by line commentary on the report and Appendix but have kept this letter to the core areas of real concern, which are as follows: 1. Failure to meet the basic conditions RDC Officers claim that the Plan does not meet the basic conditions because a. the Plan does not allocate sites b. the Plan does not seek to amend the existing development boundaries to make up the shortfall. Concerning a. above: The guidance issued by the Ministry of Housing, Communities & Local Government confirms that: “The scope of neighbourhood plans is up to the neighbourhood planning body. Where strategic policies set out a housing requirement figure for a designated neighbourhood area, the neighbourhood planning body does not have to make specific provision for housing, or seek to allocate sites to accommodate the requirement.” • Our own consultant confirmed this position and we have also had this confirmed by another consultant who has advised on over 20 Neighbourhood Plans. • Additionally, at a meeting held on 5th November 2018 an RDC Officer informed the Burwash NDP Steering Group representatives and a District Councillor that we did not have to allocate any sites but did have to accept the housing target. • The Burwash NDP is clear in its acceptance of the housing target of 52 homes. • Para 104 of Planning Practice Guidance contains further advice which supports this position. In terms of b. above: • There is no requirement to alter existing development boundaries in order to make up any housing target shortfall. • It is clear that as there is no requirement to have to allocate sites in order to accommodate the housing target then it cannot mean that boundary changes are required in order to prevent a shortfall in the housing target. It is also clear that in providing their opinion on whether the Plan meets the basic conditions that RDC Officers have ignored the following guidance issued by the Ministry for Housing, Communities & Local Government on this matter. “Does the local planning authority consider whether a neighbourhood plan or Order meets the basic conditions when a neighbourhood plan or Order is submitted to it? When a draft neighbourhood plan or Order is submitted to a local planning authority the authority is considering the draft plan or order against the statutory requirements set out in paragraph 6 of Schedule 4B of the Town and Country Planning Act 1990 (as amended). A local planning authority has to be satisfied that a basic condition statement has been submitted but it is not required to consider whether the draft plan or order meets the basic conditions. It is only after the independent examination has taken place and after the examiner’s report has been received that the local planning authority comes to its formal view on whether the draft neighbourhood plan or Order meets the basic conditions. The local planning authority should provide constructive comments on an emerging plan or Order before it is submitted.” • RDC Officers have therefore exceeded these requirements by producing this Representation which includes their views that the Plan does not meet the basic conditions when the guidance is clear that this should not be considered until after the Examiner’s report has been received. On this critical issue RDC Officers have not only misinformed the Cabinet about the need for allocation of sites and to amend existing development boundaries but are also looking to influence the Examiner by including their assessment in advance of the Examiner’s report and contrary to Government guidance. 2. DaSa The RDC report identifies a planning void created by the failure to allocate sites and the omission of sites for Burwash within the DaSa. This leads the Cabinet to believe that RDC Officers were unaware by the time that the DaSa was being written and consulted upon that Burwash would not be allocating any sites. This is completely incorrect. On 5th November 2018 RDC Officers were advised by representatives from the Burwash NP Steering Group at a meeting held at the Town Hall, also attended by Cllr. Kirby–Green, that Burwash NDP would not be allocating any sites within the Plan but did accept the housing target of 52 homes. An RDC Officer advised us at that meeting that there was no requirement for neighbourhood plans to include the allocation of sites. On 15th April 2019, an RDC Officer wrote to our NP consultant requesting an update on the local NP’s she was assisting with, including Burwash, so that RDC could report to the Inspector conducting the EIP hearings on the DaSa. The specific hearing dealing with the DaSa and its relationship with the Neighbourhood Plans was set for 8th May 2019. Our consultant responded to this RDC Officer cc other Officers on 24th April 2019 stating : “Sorry for the delayed response. Please see below an update on the proposed timescales for the groups that I am working with. I trust that this will help with your EIP. Burwash is the only plan not allocating sites.”

“Councillor Vine-Hall, Cabinet Portfolio Holder for Strategic Planning acknowledged the amount of work and effort that had gone into the production of the BNP by the …Steering Group and Council Planning officers. Unfortunately, mutually poor communication between the …Steering Group, Burwash Parish Council and the Council had led to neither the BNP nor the Development and Site Allocations Local Plan allocating sites in line with the Core Strategy….”

“The supporting text to the Burwash Neighbourhood Plan places a strong emphasis on local support for development, the target of 52 dwellings for Burwash is acknowledged and this is welcomed by the Council. However the NDP does not make any amendments or accept that amendments may need to be made to the existing development boundary to accommodate the outstanding figure for the settlement of Burwash which leaves the LPA with the question of where future development will be located given that no suitable sites were identified within the boundary during a site assessment process earlier in the planning process. The residual amount of housing of 22 dwellings Taken from the minimum target of 52 dwellings for Burwash village minus the extant outline planning permission at Strand Meadow of 30 dwellings, thus leaving a residual requirement of 22 dwellings. Whilst it is acknowledged that the BNP and a considerable number of residents object to development on this site and the site has been subject to a refusal of full planning permission, it is subject to an extant allocation in the 2006 Local Plan and an outline permission (RR/2017/582/P) exists. It therefore must be accepted as contributing to the overall target of 52 dwellings as the principle of development is established here. to be allocated, taking into account existing commitments, is more than likely to require a revised development boundary. As the Burwash Neighbourhood Plan does not allocate sites, applications within Burwash Parish will continue to be considered in the context of Policy OVE1 in the DaSA … During the progress of the Neighbourhood Plan, BPC opted to change from a plan which allocated sites to one which did not allocate sites and this decision overlapped with the advanced stages of submission and examination of the DaSA Local Plan, therefore no Burwash housing allocations were considered within the Council’s now adopted DaSA Local Plan. The District Council is now in the early evidence gathering stages of a new Local Plan. Given Burwash’s positive acknowledgement of its housing target and that the outstanding quantum of development affected is 22 dwellings which is de-minimus in the context of the overall target in adopted Core Strategy and RDC would not wish this void to impact on a successful examination of the BNP. Policy OVE1 in the adopted DaSA ensures that appropriate sites can come forward in Burwash. In any event, to support the new Local Plan (2019-2039) Rother has recently launched through its HELAA a ‘call for sites’ (October 2020) which will consider housing potential across the District.”

“5. Policy GP04 Development Boundaries This policy does not conform with strategic policies in the Core Strategy. The development boundary as set out in the BNP replicates the 2006 development boundary for Burwash and does not make provision for additional development to accommodate the outstanding housing target in the Local Plan, and therefore needs to be amended. The policy wording makes it clear that, excluding essential operational requirements of utility infrastructure providers, development will generally not be supported outside development boundaries and whilst that is the purpose of development boundaries, by not making any amendments from the 2006 boundary the plan has not taken a positive approach to development.”

“RDC has discussed at length the issues you raised with the examiner, resulting in the examiner’s report being amended to address the factual errors that were highlighted. Please find a copy of the report attached; this has been published to the relevant page on the RDC website.”

“(1) A neighbourhood development plan— (a) must specify the period for which it is to have effect, (b) may not include provision about development that is excluded development, and (c) may not relate to more than one neighbourhood area. (2) Only one neighbourhood development plan may be made for each neighbourhood area. [(2A) Subsections (1)(c) and (2) are subject to section 61G(6D) of the principal Act (as applied by section 38C(5A) of this Act).] (3) If to any extent a policy set out in a neighbourhood development plan conflicts with any other statement or information in the plan, the conflict must be resolved in favour of the policy. (4) Regulations made by the Secretary of State may make provision— (a) restricting the provision that may be included in neighbourhood development plans about the use of land, (b) requiring neighbourhood development plans to include such matters as are prescribed in the regulations, and (c) prescribing the form of neighbourhood development plans. …”

“(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, (b) having special regard to the desirability of preserving any listed building or its setting or any features of special architectural or historic interest that it possesses, it is appropriate to make the order, (c) having special regard to the desirability of preserving or enhancing the character or appearance of any conservation area, 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, retained 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.”

“(1) The general rule is that the examination of the issues by the examiner is to take the form of the consideration of writtenrepresentations. (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. ……..”

“(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 in paragraph 8(2), (b) modifications that the authority need to be made to secure that the draft order is compatible with Convention rights, (c) modifications that the authority consider need to be made to secure that the draft order complies with the provision made by or under sections 61E(2), 61J and 61L, … (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 61E(2), 61J and 61L. (5) …… (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.”

“(1) This paragraph applies if an Examiner has made a report under paragraph 10. (2) The local planning authority must – (a) consider each of the recommendations made by the report (and the reasons for them), and (b) decide what action to take in response to each recommendation. (3) ..… (4) If the authority are satisfied – (a) that the draft order meets the basic conditions mentioned in paragraph 8(2), is compatible with the Convention rights and complies with the provision made by or under sections 61E(2), 61J and 61L, or (b) that the draft order would meet those conditions, be compatible with those rights and comply with that provision if modifications were made to the draft order (whether or not recommended by the Examiner), a referendum in accordance with paragraph 14, and (if applicable) an additional referendum in accordance with paragraph 15, must be held on the making by the authority of a neighbourhood development order. (5) The order on which the referendum is …to be held is the draft order subject to such modifications (if any) as the authority consider appropriate. (6) The only modifications that the authority may make are- (a) modifications that the authority consider need to be made to secure that the draft order meets the basic conditions mentioned in paragraph 8(2), (b) modifications that the authority need to be made to secure that the draft order is compatible with Convention rights, (c) modifications that the authority consider need to be made to secure that the draft order complies with the provision made by or under sections 61E(2), 61J and 61L, (d) …… (e) modifications for the purpose of correcting errors. (7) – (9) ….. (10) In any case where the authority are not satisfied as mentioned in sub-paragraph (4), they must refuse the proposal. (11) The authority must publish in such manner as may be prescribed – (a) the decisions they make under this paragraph, (b) their reasons for making those decisions, and (c) such other matters relating to those decisions as may be prescribed. (12) The Authority must send a copy of the matters required to be published to – (a) the qualifying body, and (b) such other persons as may be prescribed.”

“(1) If – (a) the local planning authority propose to make a decision which differs from that recommended by the examiner, and (b) the reason for the difference is (wholly or partly) as a result of new evidence or a new fact or a different view taken by the authority as to a particular fact, the authority must notify prescribed persons of their proposed decision (and the reason for it) and invite representations. (2) If the authority consider it appropriate to do, they may refer the issue to independent examination. ……”

“29. The relevant principles may therefore be summarised as follows:- i) The examination of a neighbourhood plan, unlike a development plan document, does not include any requirement to consider whether the plan is “sound” (contrast s. 20(5)(b) of PCPA 2004) and so the requirements of soundness in paragraph 182 of the NPPF do not apply. So there is no requirement to consider whether a neighbourhood plan has been based upon a strategy to meet “objectively assessed development and infrastructure requirements”, or whether the plan is “justified” in the sense of representing “the most appropriate strategy, when considered against reasonable alternatives” and based upon “proportionate evidence”; ii) Where it is engaged, the basic condition in paragraph 8(2)(e) of schedule 4B to TCPA 1990 only requires that the draft neighbourhood plan as a whole be in “general conformity” with the strategic policies of the adopted development plan (in so far as it exists) as a whole. Thus, there is no need to consider whether there is a conflict or tension between one policy of a neighbourhood plan and one element of the local plan; iii) 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 2004 to determine whether a local plan meets the statutory test of “soundness”. iv) Paragraphs 14, 47 and 156 to 159 of the NPPF deal with the preparation of local plans. Thus local planning authorities responsible for preparing local plans are required to carry out a strategic housing market assessment to assess the full housing needs for the relevant market area (which may include areas of neighbouring local planning authorities). They must then ensure that the local plan meets the full, objectively assessed needs for the housing market area, unless, and only to the extent that, any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole, or specific policies in the NPPF indicate that development should be restricted (St Albans City Council v Hunston Properties[2013] EWCA Civ 1610; Solihull Metropolitan B.C. v Gallagher Estates Ltd[2014] EWCA Civ 1610). v) Those policies in the NPPF (and hence the principles laid down in Hunston and Gallagher in the interpretation of those policies) do not apply to the preparation by a qualifying body of a neighbourhood plan. Although a neighbourhood plan may include policies on the use of land for housing and on locations for housing development, and may address local needs within its area, the qualifying body is not responsible for preparing strategic policies in its neighbourhood plan to meet objectively assessed development needs across a local plan area. Moreover, where the examination of a neighbourhood plan precedes the adoption of a local plan, there is no requirement to consider whether it has been based upon a strategy to meet objectively assessed housing needs.”

“4. The role of an examiner differs from that of an inspector considering a development plan document, such as a district development plan. This was explained by Holgate J in R (Maynard) v Chiltern DC [2015] EWHC 3817 (Admin). He pointed out at [13] (2): “whereas … a local plan needs to be “consistent with national policy” an Examiner of a neighbourhood plan has a discretion to determine whether it is appropriate that the plan should proceed having regard to national policy. The limited role of an Examiner to have regard to national policy when considering a draft policy applicable to a small geographical area should not be confused with the more investigative scrutiny required by PCPA 2004 in order for an Inspector examining a draft Local Plan to determine whether such a plan is “sound”.” (Original emphasis) … 6. As we have seen, a neighbourhood development plan must have regard to national policies and advice contained in guidance issued by the Secretary of State. A statutory requirement of this kind requires a decision maker not only to take national policies into account but also to observe them and depart from them only if there are clear reasons for doing so: Carpets of Worth Ltd v Wyre Forest DC (1991) 62 P & CR 334, 342; R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37 at [47]. Accordingly, although, as Holgate J rightly said, an examiner must decide whether it is appropriate for a plan to proceed having regard to national policy, a departure from that policy must be explained. 7. As is well-settled, the interpretation of a planning policy is a question of law for the court. It is to be contrasted with the exercise of planning judgment: Tesco Stores Ltd v Dundee CC [2012] UKSC 13, [2012] PTSR 983. The exercise of planning judgment has been described as forbidden territory, into which the court may not stray: Keep Bourne End Green v Buckinghamshire Council [2020] EWHC 1984 (Admin) at [94].”

“22. … . The provisions of Part 2 of the 2004 Act envisage a “local development scheme” comprising “development plan documents”, which will together form the statutory development plan for the local planning authority’s area (section 17(3) of the 2004 Act). A neighbourhood development plan, once made, will be a constituent part of the development plan (section 38A(2) of the 2004 Act). As one would expect, the statutory scheme seeks to ensure an appropriate degree of consistency between a neighbourhood development plan and the strategy of the extant, statutorily adopted development plan. That is the essential purpose of the “basic condition” in paragraph 8(2)(e). Section 13 of the 1990 Act requires local planning authorities to keep their development plan documents under review. If a neighbourhood development plan has been made and the local planning authority later produces a development plan document containing new “strategic policies”, that development plan document will, under section 38(5) of the 2004 Act, prevail over any inconsistent policies in the neighbourhood development plan. And if a policy in a neighbourhood development plan is not, or ceases to be, up-to-date, this will be a material consideration in a development control decision, and may justify departing from that policy. 23. Nor, in my view, does the language of paragraph 8(2)(e) bear the interpretation urged upon us by Mr Young. The true sense of the expression “in general conformity with the strategic policies contained in the development plan” is simply that if there are relevant “strategic policies” contained in the adopted development plan for the local planning authority’s area, or part of that area, the neighbourhood development plan must not be otherwise than in “general conformity” with those “strategic policies”

“21. It is first necessary to identify with some precision the nature of the exercise which the court under s.287 is being asked to undertake. As I have said, s.287 creates a form of statutory judicial review. That being so, (a) so far as the question whether a local plan provision is “in general conformity” with the structure plan involves any issue of statutory construction, it is the court's duty and prerogative to decide for itself what is the correct construction; but (b) so far as the question involves the application of judgment, or expert or mature opinion, to the circumstances of the case, the court's only role is to supervise the exercise of those faculties by the relevant public decision-maker (here the SBC) according to the conventional public law test of rationality, generally referred to as the Wednesbury principle (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). 22. In my judgment issues of both kinds arise. It is therefore first necessary for the court to ascertain the correct construction of the expression “general conformity”

“the question whether the local plan is in general conformity with the structure plan is likely to admit of more than one reasonable answer, all of them consistent with the proper construction of the statutes and of the relevant documents. In those circumstances, the answer at length arrived at will be a matter of planning judgment and not of legal reasoning.”

“7.18 A key element of the mathematical delivery of new houses in the neighbourhood area has been the determination of the planning applications on the Strand Meadow site as being promoted by Park Lane Homes. Outline planning permission for residential development on the site was granted in March 2018 (RR/2017/582/P). Thereafter a full application was refused permission (RR/2018/1787/P). A subsequent appeal was dismissed. This history is important for two related reasons. The first is that the site is allocated for residential and recreational use in the saved policies of the Rother District Local Plan. The second is that the anticipated delivery of 30 dwellings on this site is committed and therefore excluded from the residual requirement for 22 dwellings to be identified on large sites in Burwash village.”

“7.19 This part of the Plan comes to two overarching conclusions. The first is that ‘everyone involved in researching and contributing to this Plan understands the huge tension between our need for additional housing and the need to protect the AONB. The steepness of the land surrounding each of our ridgetop villages, sloping into the Rother and Dudwell valleys provides irreplaceable natural habitats and long-distance views of unparalleled beauty’ (Section 3 - paragraph 54 of the Plan). The second is that ‘there are no development sites, which meet RDCs requirement of six or more homes within the existing development boundary, which will be supported by RDC and the community. For this reason, we are not allocating any sites for development within this Plan’ (Section 3 - paragraph 64 of the Plan). This approach has generated representations/objections to the Plan from both RDC and the development industry.”

“7.20 This outcome reflects the evolution of the neighbourhood plan itself. During its preparation BPC opted to change from a plan which allocated sites to one which did not allocate sites. That decision overlapped with the advanced stages of submission and examination of the DaSALP. As such no Burwash housing allocations were considered within the District Council’s now adopted DaSALP. In this context the neighbourhood area is one which is affected by the provisions of Policy OVE1 of the DaSALP which provides an interim policy approach whilst neighbourhood plans are prepared to address shortfalls in the delivery of strategic growth in certain settlements. Plainly the relationship between the Core Strategy, the DaSALP and the neighbourhood plan has not proceeded as planned. This has created a degree of uncertainty for all concerned in the delivery of the local element of the strategic housing requirement for Burwash village. 7. 21 In this strategic context it would have been helpful if the neighbourhood Plan had identified a site or sites to meet the residual strategic requirement for new development in Burwash village. Nevertheless, BPC has explained in the Plan the way in which it has grappled with the various potential development options on the one hand whilst seeking to respect the character and appearance of the AONB in general and the three settlements in particular on the other hand.”

“7.23 In these wider circumstances I have considered two potential outcomes for the examination of the Plan as follows: Outcome 1 – To recommend modifications to the Plan in general, and to its approach to housing development in particular so that it will be in general conformity with the development plan and support the delivery of the residual strategic housing requirement in the neighbourhood area and specifically in Burwash village. Outcome 2 – To recommend that the Plan does not meet the basic conditions as it fails to respond positively to meeting the residual element of the strategic housing for Burwash village in the Core Strategy and as such is not in general conformity with the development plan. In these circumstances the Plan should not proceed to referendum. This approach would correspond to that suggested by several representations from the development industry.”

“7.24 I have considered this matter very carefully. Based on all the available evidence I recommend an approach based on Outcome 1. I have reached this conclusion for three related reasons. The first is that the Plan does not seek to challenge the strategic need for new development in Burwash village in its view that it has been unable to identify sites to accommodate that growth. The second is that the Plan does not include any policies which would directly prevent the delivery of the residual amount of strategic growth in the event that an appropriate site could be identified. 7. 25 The third reason is that the wider development plan provides a default mechanism for the scenario which has arisen. Section 8 of the DaSALP updates the delivery of strategic housing in the District beyond the position as identified at the time of the adoption of the Core Strategy. It reaffirms the Core Strategy target for the delivery of 5700 net additional homes in the period to 2028. The third part of Policy OVE1 of the DaSALP comments that: ‘Until such time as a Neighbourhood Plan for the relevant settlement with an outstanding Core Strategy housing requirement is in force, planning applications will be favourably considered for development proposals in those settlements where: (i) they contribute to meeting the housing target for that settlement and accord with the relevant spatial strategy; and (ii) the site and development proposals are otherwise suitable having regard to other relevant policies of the Core Strategy, including the considerations in OSS2 and OSS3, and of this Plan’ 7. 26 This approach is reinforced in RDC’s representation to the Plan in which it commented: ‘Given Burwash’s positive acknowledgement of its housing target and that the outstanding quantum of development affected is 22 dwellings which is de-minimus in the context of the overall target in adopted Core Strategy and RDC would not wish this void to impact on a successful examination of the Burwash Neighbourhood Pan. Policy OVE1 in the adopted DaSALP ensures that appropriate sites can come forward in Burwash. In any event, to support the new Local Plan (2019-2039) Rother has recently launched through its HELAA a ‘call for sites’ (October 2020) which will consider housing potential across the District’ 7. 27 This representation pre-dates the Council’s separate refusal of the reserved matters application for land off Strand Meadow (RR/2020/1822/P). Nevertheless, that decision reflects the difficulties that have been encountered in identifying and delivering sites for new development in the parish in general, and in Burwash village in particular. In addition, whilst the impact of that decision locally is significant it does not have statistical or strategic implications on the delivery of housing in the wider District. Irrespective of the outcome of the most recent planning application on the Strand Meadow site or the eventual appeal decision on the 2020 proposal, the 22-dwelling residual strategic housing requirement excludes the 30 dwellings that the Strand Meadow site would otherwise deliver. 7. 28 In a broader sense the first outcome would: •. reflect the broader work which the community has undertaken on the Plan; •. safeguard the other policies in the plan which meet the basic conditions (subject to recommended modifications); •. provide a set of policies at a neighbourhood level to consolidate the other policies in the development plan; and •. provide a more bespoke set of policies to assist in future work to identify residential sites to meet the strategic housing requirements in the Core Strategy (or a future iteration of that Plan) for the neighbourhood area. 7. 29 In particular the first outcome would take account of the approach which was put in place in the DaSALP to reflect the circumstances which prevailed at that time. Policy OVE1 provides a strategic context for settlements where allocations were not identified in that Plan and where their emerging neighbourhood plans were expected to deliver the residual element of their respective housing requirements as identified in the Core Strategy. The policy ensures that in the interim period whilst neighbourhood plans are being prepared development proposals in those settlements would be favourably considered where they contribute to meeting the housing target for that settlement, accord with the relevant spatial strategy and otherwise meet design and other planning considerations. This approach reflected the importance of ensuring strategic housing delivery in the District and took account of the findings of the Planning Inspector’s report on that Plan (Issue 5). 7. 30 The identification of sites to meet the residual housing requirement in the neighbourhood area in general and in Burwash village in particular has not taken place as part of the development of the Burwash neighbourhood plan. In these circumstances the neighbourhood plan has not directly applied itself to meeting the strategic delivery of new housing in the District in general, and in Burwash village in particular as this matter is no longer within the scope of the plan. As such it would be contrary to the wider approach of the Core Strategy and the DaSALP for the potential making of the neighbourhood plan to avoid the ongoing implications of Policy OVE1 of the DaSALP. 7. 31 The second outcome would be a matter-of-fact response to a specific, albeit very important, aspect of the Plan. In particular it would offer no benefits beyond those in outcome 1 in housing delivery as the default position in the neighbourhood area would also be Policy OVE1 of the DaSALP in that scenario.”

“Introduce a new section 3 of the Plan as follows: ‘Section 3: The delivery of the strategic housing requirement for Burwash Village. The Plan has sought to identify and secure the delivery of the residual element of the 52 dwellings identified for Burwash village in Figure 17 of the DaSALP. The work undertaken by the Parish Council to identify appropriate sites in the neighbourhood area in general, and in and around Burwash village in particular, is detailed in Appendix [insert number] of this Plan. The matter became more challenging with RDC’s refusal of the reserved matters planning application on the site of Strand Meadow (RR/2020/1822/P). The earlier outline planning permission indicated the delivery of 30 dwellings. A further application (RR/2021/409/P) was submitted shortly after this decision. This planning application history, together with the wider work on assessing potential sites, highlights the challenges in identifying appropriate and deliverable sites in the neighbourhood area. In these circumstances the Parish Council has decided not to allocate sites for development in this Plan. This decision is based on its detailed assessment of the various development site opportunities and the environmental designation in the parish. Nevertheless, the Parish Council recognises that the strategic housing need remains and that it will need to respond to proposals which may come forward to accommodate that need. In this context the neighbourhood plan acknowledges that, in these circumstances, Policy OVE1 of the DaSALP will be a key factor in the determination of planning application in the parish which seek to address this strategic requirement for new housing. In particular Policies OSS2 and OSS3 of the Rother Core Strategy would have particular significance. For clarity Policy OVE1 of the DaSALP is reproduced below: Policy OVE1: Housing supply and delivery pending plans Housing sites sufficient to meet the Core Strategy requirement of at least 5,700 net additional homes over the period to 2028 will be met by allocations and other provisions in this Plan and Neighbourhood Plans. No phasing restrictions will be imposed on development allocations, other than for site-specific, normally infrastructure, reasons. Until such time as a Neighbourhood Plan for the relevant settlement with an outstanding Core Strategy housing requirement is in force, planning applications will be favourably considered for development proposals in those settlements where: (i) they contribute to meeting the housing target for that settlement and accord with the relevant spatial strategy; and (ii) the site and development proposals are otherwise suitable having regard to other relevant policies of the Core Strategy, including the considerations in OSS2 and OSS3, and of this Plan’”

“In the Executive Summary replace sections 6 to 16 with: ‘6. BPC has undertaken a significant amount of work on identifying appropriate and deliverable housing sites in the parish in general and within and on the edge of Burwash Village in particular. This work is summarised in Appendix [insert number]. Taking account of a series of environmental and topographical issues the Parish Council has decided not to allocate sites in the Plan. 7. Nevertheless, the Parish Council recognises that the strategic housing need remains and the parish will need to respond to proposals which may come forward to accommodate that need. In this context the neighbourhood plan acknowledges that in these circumstances that Policy OVE1 of the DaSALP will be a key factor in the determination of planning applications in the parish which seek to address this strategic requirement for new housing. In particular Policies OSS2 and OSS3 of the Rother Core Strategy would have particular importance. 8. The Parish Council remains committed to playing its part in delivering the strategic housing requirement for the parish as identified in the Core Strategy. It is also committed to exploring other similar proposals to the highly successful Morris Close development in order to provide affordable housing for the community. It will also look into the merits of setting up a vehicle such as a Community Land Trust to assist in the delivery of new homes.’”

“7.35 Whilst I understand the approach that BPC has taken on this matter under normal circumstances there would have been clear merit in allocating the site for residential development in the Plan. It would have acknowledged the grant of outline planning permission and the expectation that reserved matters or full applications would follow and would be positively determined. However, this has not been the case here – two planning applications have been refused. I comment on this issue in greater detail in paragraphs 7.46 to 7.53 of this report. Nevertheless, in general terms the approach taken by BPC reflects the planning history of the site and, in any event, the majority of the proposed Strand Meadow site is already within the Burwash Village settlement boundary.”

“7.49 I sought advice from the Parish Council about its decision not to extend the development boundary of Burwash village to accommodate the full extent of the outline planning permission on land off Strand Meadow. A small part of the site with outline planning permission (on its western boundary) lies outside the 2006 development boundary. It commented: ‘The Parish Council feels the existing settlement boundaries still provide the correct balance of built form and countryside gaps between settlements essential to protect the AONB. Expansion of these boundaries would in particular encourage ridge top development eroding the views of the countryside and potentially linking together our three distinct village settlements. The development at Strand Meadow was considered carefully by the Steering Group and we decided not to include this site on the basis of the very contentious scheme proposed by Park Lane Homes because its inclusion would have been completely at odds with the views of this community’ 7. 50 I have considered this matter very carefully. In general terms there would be clear merit in the development boundary of Burwash village fully and properly reflecting the development management decisions of RDC. In a broader context it would be unreasonable for any resulting new development on such sites to be classified as being in the open countryside for planning policy and land charges purposes. Similarly, whilst BPC suggest that the inclusion of the site within the development boundary would be at odds with the views of the community those views have already been considered in the round by RDC in its determination of the outline planning application. However, in this specific case, two reserved matters applications have been refused planning permission by RDC. The most recent refusal was in February 2021. On balance given the uncertainly which surrounds this matter I am satisfied that the approach taken in the Plan is appropriate. This is a matter which could be addressed in any review of a ‘made’ neighbourhood plan based on the determination of current and any future planning applications and/or appeals on the site.”

“7.51 The policy itself comments that development proposals outside the defined development boundaries will not be supported unless they are needed to meet essential operational requirements of utility infrastructure requirements. However, this approach is both prescriptive and more onerous than that in national and local planning policies and Policy RA3 of the Core Strategy in particular. In addition, the approach taken is inherently negative as it focuses on development outside the development boundaries rather than on potential development within the three identified development boundaries (and which are the areas towards which the wider development plan directs new development). 7. 52 I recommend that the policy is modified so that it takes a more balanced approach towards development which may be supported in the countryside. This would ensure that it has regard to national policy and is in general conformity with the strategic policies in the development plan. I also recommend that the policy includes an element about development within the three development boundaries. This would correspond with the pattern of day-to-day planning applications that are received in the neighbourhood area for minor and/or domestic development proposals. In a broader sense it would bring forward the positive approach for neighbourhood plans expected by the NPPF. 7. 53 In this context I also recommend that the policy includes elements to address the need for the delivery of affordable housing and the need to safeguard the historic landscape environment. This overlaps with my recommended modifications to Policies HO01 and EN05 later in this report. 7. 54 I also recommend consequential modifications to the supporting text.”

“Are housing requirement figures for neighbourhood areas binding? The scope of neighbourhood plans is up to the neighbourhood planning body. Where strategic policies set out a housing requirement figure for a designated neighbourhood area, the neighbourhood planning body does not have to make specific provision for housing, or seek to allocate sites to accommodate the requirement (which may have already been done through the strategic policies or through non-strategic policies produced by the local planning authority). The strategic policies will, however, have established the scale of housing expected to take place in the neighbourhood area. Housing requirement figures for neighbourhood plan areas are not binding as neighbourhood planning groups are not required to plan for housing. However, there is an expectation that housing requirement figures will be set in strategic policies, or an indicative figure provided on request. Where the figure is set in strategic policies, this figure will not need retesting at examination of the neighbourhood plan. Where it is set as an indicative figure, it will need to be tested at examination.”

“Where neighbourhood planning bodies have decided to make provision for housing in their plan, the housing requirement figure and its origin are expected to be set out in the neighbourhood plan as a basis for their housing policies and any allocations that they wish to make….”

“We consider the delivery of new housing as extremely important…” “In the creation of this Plan, we have paid careful attention to everyone’s housing needs. We know we need more housing and we want to meet these needs by providing suitable and sustainable homes. We have carried out a comprehensive review of the land available, including sites put forward during our Call for Sites and ensured that the community has been central to our extensive consultation.” “Our policies directly reflect the dual aspirations of meeting local housing needs and protecting this unique historical place.” “BPC resolved in May 2019 to proceed with the Plan including the target of 52 new homes without allocating sites since the two main sites on which the target was based had been tested and refused and no other suitable sites were identified during the Call for Sites.”

“6. BPC has undertaken a significant amount of work on identifying appropriate and deliverable housing sites in the parish in general and within and on the edge of Burwash Village in particular. This work is summarised in Appendix P. Taking account of a series of environmental and topographical issues the Parish Council has decided not to allocate sites in the Plan. 7. Nevertheless, the Parish Council recognises that the strategic housing need remains and the parish will need to respond to proposals which may come forward to accommodate that need. In this context the neighbourhood plan acknowledges that in these circumstances that Policy OVE1 of the DaSALP will be a key factor in the determination of planning applications in the parish which seek to address this strategic requirement for new housing. In particular Policies OSS2 and OSS3 of the Rother Core Strategy would have particular importance. 8. The Parish Council remains committed to playing its part in delivering the strategic housing requirement for the parish as identified in the Core Strategy. It is also committed to exploring other similar proposals to the highly successful Morris Close development in order to provide affordable housing for the community. It will also look into the merits of setting up a vehicle such as a Community Land Trust to assist in the delivery of new homes.”

“The true sense of the expression “in general conformity with the strategic policies contained in the development plan” is simply that if there are relevant “strategic policies” contained in the adopted development plan for the local planning authority’s area, or part of that area, the neighbourhood development plan must not be otherwise than in “general conformity” with those “strategic policies”

“The plan-making framework 17. The development plan must include strategic policies to address each local planning authority’s priorities for the development and use of land in its area [FN11: Section 19(1B-1E) of the Planning and Compulsory Purchase Act 2004.]….. 18. Policies to address non-strategic matters should be included in local plans that contain both strategic and non-strategic policies, and/or in local or neighbourhood plans that contain just non-strategic policies. 19. The development plan for an area comprises the combination of strategic and nonstrategic policies which are in force at a particular time. Strategic policies 20. Strategic policies should set out an overall strategy for the pattern, scale and quality of development, and make sufficient provision for: a) housing (including affordable housing), employment, retail, leisure and other commercial development; …… 21. Plans should make explicit which policies are strategic policies. These should be limited to those necessary to address the strategic priorities of the area (and any relevant cross-boundary issues), to provide a clear starting point for any nonstrategic policies that are needed. Strategic policies should not extend to detailed matters that are more appropriately dealt with through neighbourhood plans or other non-strategic policies. 22. Strategic policies should look ahead over a minimum 15 year period from adoption, to anticipate and respond to long-term requirements and opportunities, such as those arising from major improvements in infrastructure.” “Non-strategic policies 28. Non-strategic policies should be used by local planning authorities and communities to set out more detailed policies for specific areas, neighbourhoods or types of development. This can include allocating sites, the provision of infrastructure and community facilities at a local level, establishing design principles, conserving and enhancing the natural and historic environment and setting out other development management policies. 29. Neighbourhood planning gives communities the power to develop a shared vision for their area. Neighbourhood plans can shape, direct and help to deliver sustainable development, by influencing local planning decisions as part of the statutory development plan. Neighbourhood plans should not promote less development than set out in the strategic policies for the area, or undermine those strategic policies [FN16: Neighbourhood plans must be in general conformity with the strategic policies contained in any development plan that covers their area.]. 30. Once a neighbourhood plan has been brought into force, the policies it contains take precedence over existing non-strategic policies in a local plan covering the neighbourhood area, where they are in conflict; unless they are superseded by strategic or non-strategic policies that are adopted subsequently.”

“Strategic and non-strategic policies 1. 29 Essentially, it is the Core Strategy that sets the strategic policies of the Local Plan, while those of this Plan are generally viewed as “non-strategic” – but still important and warranting statutory expression.”

“29. I entirely agree with Supperstone J that the basic conditions cannot be equated with soundness as understood from paragraph 182 of the Framework. I would, however, with respect, differ from the suggestion that “the only statutory requirement imposed by Condition (e) is that the Neighbourhood Plan as a whole should be in general conformity with the adopted development plan as a whole”

“It is a general rule that neighbourhood plan examinations should be held by written representations only. Having considered all the information before me, including the representations made to the submitted plan, I was satisfied that the Plan could be examined without the need for a public hearing. I advised RDC of this decision once I had received the responses to the clarification note.”

“…hearings should be held only in specific cases and it would not be normal for examiners to seek detailed comments from third parties. In this case the issue is reinforced by the detail of the initial representations from the development industry.”

“….. RDC has discussed at length the issues you raised with the examiner, resulting in the examiner’s report being amended to address the factual errors that were highlighted. Please find a copy of the report attached; this has been published to the relevant page on the RDC website.”

“This report replaces the original report of 19 April 2021. It clarifies details on planning applications which have been determined on the allocated housing site off Strand Meadow in the Rother Local Plan 2006. It also comments on the relationship between the application history on this site, the delivery of strategic housing growth in Burwash village and the outcome of the examination of the neighbourhood plan.”

“It is a general rule that neighbourhood plan examinations should be held by written representations only. Having considered all the information before me, including the representations made to the submitted plan, I was satisfied that the Plan could be examined without the need for a public hearing. This decision was assisted by the level of detail available to me on the Plan, including the various representations and the responses to the clarification note. I advised RDC of this decision once I had received the responses to the clarification note.”

“As the recommendations made [by] the examiner have been accepted by both the parish and district councils, there will be no further consultation on the Plan. All documents will be published on the RDC website, and most likely on the Parish Council website, once they have been issued. I do not yet have a date for this, as the Parish Council has requested a short extension.”

“The Neighbourhood Planning (General) Regulations 2021 do not stipulate that the internal report accepting/declining the recommendations of the examiner must be made available for public comment prior to the Decision Statement being published, and further to this, this report has not been published in advance of the DS for previous NPs in Rother which have been through examination. The Town and Country Planning Act 1990, Schedule 4B, para 13 sets out that if the LPA proposes to make a decision which differs from the examiner’s recommendations, then the authority must notify ‘prescribed persons’ and invite representations. As I mentioned in my previous email, we are proposing to accept the examiner’s recommendations therefore this stage of consultation is not relevant in this case. There will be a short extension to the 5 weeks normally allowed for the Decision Statement to be published requested by Burwash PC. …”

“The last time we spoke you confirmed that you would keep me informed about the progress on the Burwash Neighbourhood Plan …As I have not heard from you I have checked on the Council website and now note that the Council has now decided to proceed to a Referendum and a date has been set for this on 16th September. Please can you confirm the date the decision was made by the District Council to proceed to a Referendum?”

“The last time we spoke I also mentioned that we are extremely busy with the Local Plan review, and I’m afraid I’m not always able to able to keep individual landowners/agents up to date with NP progress. All the information you require is on the RDC NP page, including the report supporting the Chief Executive decision that the Burwash NP proceeds to referendum, which is dated 6th July 2021.”

“(1) Any party to a planning inquiry is entitled (i) to know the case which he has to meet and (ii) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case. (2) If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the inspector’s 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 matters 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.”

“(1) The general rule is that the examination of the issues by the examiner is to take the form of the consideration of writtenrepresentations. (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. ……..”

“…..It is expected that the examination of a draft neighbourhood plan. …. will not include a public hearing. Rather the examiner should reach a view by considering written representations. Where the independent examiner considers it necessary to ensure adequate examination of an issue or to give a person a fair chance to put a case, they must hold a hearing to listen to oral representations about a particular issue. The subject of a hearing is determined by the independent examiner based on their initial views of the draft plan…. and any other supporting documents submitted by the qualifying body and the representations received from interested parties.”