Policy in neighbourhood plan covering development on local green spaces was unlawful, Court of Appeal rules

The Court of Appeal has ruled that each of ten areas was lawfully designated as a local green space (LGS) in a neighbourhood plan but a policy which applied to them once designated was not consistent with national planning policies for managing development within the Green Belt.

In Lochailort Investments Ltd, R (On the Application Of) v Mendip District Council [2020] EWCA Civ 1259 Lord Justice Lewison said that in the absence of reasoned justification, the consequence was that Policy 5 of the Norton St Philip Neighbourhood Plan – which stated that "Development on Local Green Spaces will only be permitted if it enhances the original use and reasons for the designation of the space" - was unlawful.

He therefore allowed the appeal on that ground alone. Lord Justice Floyd and Lady Justice Asplin agreed.

The neighbourhood plan had been approved by Mendip District Council. Mrs Justice Lang subsequently held in the High Court that the neighbourhood plan had contained lawful policies.

The appellant, Lochailort Investments, owns land in the village on which it hopes to build homes. It raised four grounds of challenge:

i) Policy 5 of the Plan failed to meet the basic condition stated in paragraph 8 (2) (a) [of Schedule 4B of the Town and Country Planning Act 1990] because it was inconsistent with national Green Belt policy;

ii) The designation of the LGSs was unlawful because the planning authority did not consider whether the LGSs were capable of enduring beyond the plan period and thus failed to comply with paragraph 99 of the NPPF;

iii) The judge was wrong to repair the deficiencies in the examiner's report by applying in her favour a presumption that she must have taken national policies into account even though she did not explicitly consider them;

iv) The Plan was not in general conformity with strategic development policies in the local plan, and thus failed to comply with the basic condition stated in paragraph 8 (2) (e).

Lord Justice Lewison allowed the appeal on ground i) but dismissed the other grounds of challenge.

On ground i) the Court of Appeal judge said he agreed with counsel for Lochailort that in all the ways he identified Policy 5 was more restrictive than national policies for managing development within the Green Belt. "In my judgment that means that it is not consistent with national Green Belt policy. It does not, therefore, comply with paragraph 101 of the NPPF [National Planning Policy Framework].”

Lord Justice Lewison continued: “Non-compliance with the NPPF does not, of course, automatically mean that a policy in the terms of Policy 5 is unlawful. The NPPF is a material consideration but it is not the law. The statute requires no more than that regard must be had to it. But if a neighbourhood plan departs from the NPPF it must be a reasoned departure. No reasons for the departure were given in this case.”

He added: “I do not regard this conclusion as being an inappropriately forensic analysis of the examiner's report. Put bluntly, there is a gaping hole in the reasoning in this respect. None of the papers put before Mendip independently considered this question; and therefore the validity of the decision in this respect is, in effect, dependent on the examiner's report.”