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High Court critical of Pickles' approach to neighbourhood planning appeal

The High Court has allowed an appeal against the decision of outgoing communities secretary Eric Pickles to block a 120-home development in a West Sussex village after Pickles was found to have placed too much weight on the policies of an emerging neighbourhood plan and failed properly to justify his decision in line with government planning policy.12 May 2015

A planning expert has said the decision provides valuable guidance on the correct procedure for making decisions affecting neighbourhood plans.

The communities secretary refused permission last September for developer Woodcock Holdings' (WH) plans to build 120 homes, a community facility with office space, a care home and retail units on 6 hectares of fields in the village of Sayers Common. In coming to his decision, Pickles had agreed with planning inspector Jennifer Vyse that the proposal was acceptable in all respects save for the conflict with a policy of the emerging Hurstpierpoint and Sayers Common Neighbourhood Plan (HSCNP), which sought to cap the number of homes built in Sayers Common to between 30 and 40.

However, unlike Vyse, who gave only "limited weight" to the HSCNP, Pickles had given "significant weight to the fact that the emerging HSCNP has identified housing allocations elsewhere within the neighbourhood plan area" and concluded that "it would be inappropriate to prejudge" whether more land might be required to be allocated for development later in the examination of the HSCNP.

In a decision issued earlier this month, High Court judge Mr Justice Holgate upheld WH's legal challenge to Pickles' decision.

The judge agreed with WH that Pickles should have considered the housing policies in the HSCNP to be out-of-date due to the lack of a demonstrable five year supply of housing land in the area, in accordance with paragraph 49 of the National Planning Policy Framework (NPPF). The communities secretary should then have applied the presumption in favour of sustainable development outlined in paragraph 14 of the NPPF and weighed the conflict with the HSCNP against the benefits of the proposal, Mr Justice Holgate said.

"The [communities secretary] was obliged to weigh the conflict with the strategy in the draft plan, by virtue of the scale of the appeal proposal, against his positive findings that the proposal would give rise to no harm as regards scale, its effect on the character of the village, infrastructure requirements and other harm," said Mr Justice Holgate. "The decision letter failed to carry out that exercise."

The judge agreed with WH that Pickles had failed properly to take into account and apply government policy on prematurity finding that it had been "wholly unsatisfactory" for Pickles to have offered "such sparse reasoning on prematurity" in his decision letter. The communities secretary had "failed to identify how granting permission would be prejudicial to the outcome of central issues affecting the draft plan, so as to amount to an adverse impact significantly and demonstrably outweighing the benefits", Mr Justice Holgate found.

Mr Justice Holgate noted that "the examination of a neighbourhood plan is very different from that of a local plan", requiring an assessment only of whether the plan is in general conformity with local strategic planning policies, contributes to sustainable development and is appropriate with regard to national planning policies. By considering the scale of housing in Sayers Common to be a matter that ought to be decided through the examination of the HSCNP, the judge said Pickles had demonstrated "a troubling failure … to appreciate the limited scope of the examination of a neighbourhood plan and the implications this undoubtedly has for reliance on prematurity in relation to that process as a reason for refusing planning permission".

In the absence of an existing objective assessment of housing need in the area, Pickles had decided that there was no appropriate housing figure against which to assess the allocations in the draft plan and that he ought to "tip the balance in favour of the emerging neighbourhood plan proposals", including the cap on the number of homes in Sayers Common. Mr Justice Holgate found no justification for this approach, suggesting that the communities secretary ought instead to have considered whether reduced weight should be given to certain of the housing policies in the HSCNP.

"The [communities secretary] should have appreciated ... that [the housing policy] would not satisfy the 'basic requirement' to have regard to the NPPF, and in particular the need for 'flexibility' and to 'plan positively for growth', unless it was amended so as to remove the cap limiting new housing in the village to 30 to 40 dwellings", Mr Justice Holgate said.

Planning expert Nick McDonald of Pinsent Masons, the law firm behind Out-Law.com, said: "all four of the developer’s grounds of challenge were upheld by the High Court providing valuable guidance on the legal interaction between the NPPF, National Planning Policy Guidance, emerging plans and housing numbers."

"At the heart of this decision is the fact that the inspector found that the proposal was acceptable in planning terms – the communities secretary did not disagree with that, but then misapplied national policy and took into account irrelevant matters, such as his own procedural call-in policy, in overturning that conclusion to withhold permission, so as not to prejudice the draft neighbourhood plan," said McDonald. "The communities secretary's decision sought to protect that plan and its progression, giving it 'significant weight', but failed to consider whether that was appropriate under the NPPF or to review the draft plan against the relevant national policies."

The appeal will be remitted for re-determination by Pickles' successor as communities secretary, Greg Clark, who was appointed in prime minister David Cameron's cabinet reshuffle on Monday.