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Neighbourhood plans and draft Local Plan allocation

A parish council recently won an important victory over whether a neighbourhood plan prevails over draft Local Plan allocation. Meyric Lewis and Kate Olley examine the ruling.

In Thurston Parish Council v Mid Suffolk District Council [2022] EWHC 352 (Admin) Thurston Parish Council succeeded in their High Court judicial review of Mid Suffolk Council’s grant of planning permission to Bloor Homes for 210 dwellings outside the settlement boundary established in the Parish’s Neighbourhood Plan.

The Council granted planning permission relying on the site’s draft allocation for development in the emerging Babergh and Mid Suffolk Joint Local Plan. The draft allocation in the plan is the subject of substantial objections by the Parish Council and others on grounds of being outside the recently established settlement boundary for Thurston – and because of Thurston’s lack of capacity to accommodate any more large scale development in addition to that permitted in recent years.

However, the Thurston Neighbourhood Plan, “made” in 2019 following independent examination and a statutory referendum, provides expressly in Policy 1: Spatial Strategy that “new development in Thurston Parish shall be focused within the settlement boundary”.

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The Parish Council succeeded with their grounds of challenge that: 

(1) Council members were wrongly advised by officers on the relative weight to be accorded to the Neighbourhood Development Plan by stating:

(a) that there was a “conflict” with or “tension” between the Neighbourhood Plan and the emerging Local Plan (which was subject to numerous objections) – when they should have been advised that the application proposals were directly in conflict with the statutory Neighbourhood Plan as being outside the settlement boundary established in it under Policy 1; 

(b) in subsequent oral advice to committee, that the application proposals were not in fact in conflict with the Neighbourhood Plan at all.

(2) Officers’ advice on the stated engagement of the “tilted balance” in para. 11 of the NPPF was simply wrong in that the tilted balance only applies “where there are no relevant development plan policies, or the policies which are most important for determining the application are out of date”, see para. 11(d). Here, even though certain polices in the old statutory Local Plan were out of date, the “Spatial Strategy” policy and settlement boundary in the new Neighbourhood Plan were wholly up to date.

The Parish Council has consistently objected to the District Council’s proposed strategy for Thurston village as the emerging local plan has been developed and maintains that that strategy should have been properly scrutinised as part of the ongoing local plan examination – and that a grant of planning permission for the site would undermine that process. The Parish Council has consistently argued that all applications which fail to adhere to the main policies in the Thurston Neighbourhood Development Plan should not be supported.

The Council and Bloor Homes are seeking permission to appeal. But the Parish maintains that there is no legal basis on which the court’s construction of the policy in the Neighbourhood Plan could be faulted in the contextual background against which it was construed and which was fully taken into account in the court’s judgment.

The case is also notable because the Parish Council secured Aarhus claim costs protection for the making of the claim, relying on Crondall Parish Council v. Secretary of State CO/3900/2018.

Meyric Lewis is a barrister at Francis Taylor Building. He appeared for Thurston Parish Council instructed by Bob McGeady of Ashtons Legal.

Kate Olley, also of Francis Taylor Building. She appeared for Bloor Homes Limited instructed by Ben Stansfield of Gowling WLG (UK) LLP.

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