Court of Appeal confirms neighbourhood development plans can make site allocations

Developer Larkfleet Homes (LH), which had unsuccessfully promoted a site in the parish of Uppingham for housing development, applied last year for a judicial review of Rutland County Council's decision to allow the Uppingham Neighbourhood Plan (UNP) to proceed to public referendum. A High Court judge rejected the developer's arguments that the allocation of particular sites for development in NDPs was not permitted by legislation and that the incorrect process had been followed by the Council in deciding whether an environmental assessment was required.

The Court of Appeal granted LH leave to appeal the judgment and Lords Justice Moore-Bick and Richards and Lady Justice Sharp handed down their decision to dismiss the appeal last week.

LH had argued that a government local planning regulation restricted the allocation of sites to documents which were "prepared as local development plans". Appeal judge Lord Justice Richards said LH's argument was "unfounded" and the regulation in question related only to "documents prepared or to be prepared by a local planning authority".

"NDPs, by contrast, are not prepared by a local planning authority and the statute does not even use the term 'prepared' in relation to them: they are proposed by a qualifying body … and are made by a local planning authority on completion of the process so initiated," said Lord Justice Richards. "More important, however, is the contextual point that NDPs are governed by a separate statutory regime."

"The [statutory] provisions relating specifically to NDPs are plainly wide enough ... to allow site allocation policies to be included in such plans," the appeal judge said. "It would indeed be very surprising if site allocation could not be included in them, since the location of housing is likely to be the single most important planning issue for a neighbourhood."

LH had also argued that the Council had unlawfully concluded that the UNP was unlikely to have significant environmental effects and that a strategic environmental assessment was, therefore, not required. The developer had claimed that the Council's environmental screening report had considered only the negative environmental effects, rather than also considering the positive effects of the UNP as required by law.

This argument was also rejected by the Court of Appeal. Lord Justice Richards said that, whilst the screening report was "badly expressed … documents of this kind are to be read as a whole and with a degree of benevolence". The appeal judge noted that there were indications within the report that "the author had regard to positive as well as negative effects". He found that High Court judge Mr Justice Collins had not "take[n] benevolence beyond its permissible limits" in concluding that the Council's decision had been lawful.

Planning expert Ben Arrowsmith of Pinsent Masons, the law firm behind Out-Law.com, said: "The take-up on the making of NDPs in the country has been slower than anticipated. By 20 May 81 NDPs had been independently examined and 46 adopted.  There are a number of reasons why this might be but one of them is the lack of resources that parish councils and neighbourhood forums have to deal with what can be quite intricate matters of law."

"This Court of Appeal case is welcome in that it gets rid of the potential for obfuscation which arises because whilst NPDs are linked to local development plans, they are governed by separate regimes," said Arrowsmith. "It also clarifies that it is perfectly permissible for NDPs to include site allocations. This will provide a good deal of clarity to those neighbourhood groups who are in the process of developing an NDP."