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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 1146 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
LOCHAILORT INVESTMENTS LIMITED
|- and -
|MENDIP DISTRICT COUNCIL
|NORTON ST PHILIP PARISH COUNCIL
Hashi Mohamed (instructed by Law & Governance – Shape Partnership Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 24 March 2020
Crown Copyright ©
|Statutory and policy framework||8|
|National policy and guidance||21|
|Grounds of challenge||86|
|Legal challenges under s.61N(2) TCPA 1990||88|
|Grounds 1 and 3||99|
Mrs Justice Lang:
Statutory and policy framework
"(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,
(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, 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 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
(6) The report must -
(a) give reasons for each of its recommendations, and
(b) contain a summary of its main findings."
"(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.
(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.
(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,"
(e) modifications for the purpose of correcting errors.
(7) – (10) …..
(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."
(2) National policy and guidance
"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 [FN 16: Neighbourhood plans must be in general conformity with the strategic policies contained in any development plan that covers their area.]."
"009: Can a neighbourhood plan come forward before an up-to-date Local Plan is in place?
Neighbourhood plans, when brought into force, become part of the development plan for the neighbourhood area. They can be developed before or at the same time as the local planning authority is producing its local plan …..
A draft neighbourhood plan or Order must be in general conformity with the strategic policies of the development plan in force if it is to meet the basic condition. Although a draft neighbourhood plan or Order is not tested against the policies in an emerging Local Plan the reasoning and evidence informing the Local Plan process is likely to be relevant to the consideration of the basic conditions against which a neighbourhood plan is tested. For example, up-to-date housing needs evidence is relevant to the question of whether a housing supply policy in a neighbourhood plan or Order contributes to the achievement of sustainable development.
Where a neighbourhood plan is brought forward before an up-to-date Local Plan is in place the qualifying body and the local planning authority should discuss and aim to agree the relationship between policies in:
- the emerging neighbourhood plan
- the emerging Local Plan
- the adopted development plan
with appropriate regard to national policy and guidance.
The local planning authority should take a proactive and positive approach, working collaboratively with a qualifying body particularly sharing evidence and seeking to resolve any issues to ensure the draft neighbourhood plan has the greatest chance of success at independent examination.
The local planning authority should work with the qualifying body to produce complementary neighbourhood and Local Plans. It is important to minimise any conflicts between policies in the neighbourhood plan and those in the emerging Local Plan, including housing supply policies. This is because section 38(5) of the Planning and Compulsory Purchase Act 2004 requires that the conflict must be resolved by the decision maker favouring the policy which is contained in the last document to become part of the development plan.
"While there are prescribed documents that must be submitted with a neighbourhood plan or Order there is no 'tick box' list of evidence required for neighbourhood planning. Proportionate, robust evidence should support the choices made and the approach taken. The evidence should be drawn upon to explain succinctly the intention and rationale of the policies in the draft neighbourhood plan or the proposals in an Order."
LGS and Green Belt
"99. The designation of land as Local Green Space through local and neighbourhood plans allows communities to identify and protect green areas of particular importance to them. Designating land as Local Green Space should be consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services. Local Green Spaces should only be designated when a plan is prepared or updated, and be capable of enduring beyond the end of the plan period.
100. The Local Green Space designation should only be used where the green space is:
a) in reasonably close proximity to the community it serves;
b) demonstrably special to a local community and holds a particular local significance, for example because of its beauty, historic significance, recreational value (including as a playing field), tranquillity or richness of its wildlife; and
c) local in character and is not an extensive tract of land.
101. Policies for managing development within a Local Green Space should be consistent with those for Green Belts."
"143. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
144. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations."
"145. A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt. Exceptions to this are:
a) buildings for agriculture and forestry;
b) the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, outdoor recreation, cemeteries and burial grounds and allotments; as long as the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it;
c) the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
d) the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
e) limited infilling in villages;
f) limited affordable housing for local community needs under policies set out in the development plan (including policies for rural exception sites); and
g) limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings), which would:
? not have a greater impact on the openness of the Green Belt than the existing development; or
? not cause substantial harm to the openness of the Green Belt, where the development would re-use previously developed land and contribute to meeting an identified affordable housing need within the area of the local planning authority."
"013 What types of green area can be identified as Local Green Space?
The green area will need to meet the criteria set out in paragraph 100 of the National Planning Policy Framework. Whether to designate land is a matter for local discretion. For example, green areas could include land where sports pavilions, boating lakes or structures such as war memorials are located, allotments, or urban spaces that provide a tranquil oasis."
"015 How big can a Local Green Space be?
There are no hard and fast rules about how big a Local Green Space can be because places are different and a degree of judgment will inevitably be needed. However, paragraph 100 of the National Planning Policy Framework is clear that Local Green Space designation should only be used where the green area concerned is not an extensive tract of land. Consequently blanket designation of open countryside adjacent to settlements will not be appropriate. In particular, designation should not be proposed as a 'back door' way to try to achieve what would amount to a new area of Green Belt by another name."
"017 What about public access?
Some areas that may be considered for designation as Local Green Space may already have largely unrestricted public access, though even in places like parks there may be some restrictions. However, other land could be considered for designation even if there is no public access (eg green areas which are valued because of their wildlife, historic significance and/or beauty.
Designation does not in itself confer any rights of public access over what exists at present. Any additional access would be a matter for separate negotiation with land owners, whose legal rights must be respected."
"019 Does land need to be in public ownership?
A Local Green Space does not need to be in public ownership. However, …. the qualifying body (in the case of neighbourhood plan making) should contact landowners at an early stage about proposals to designate any part of their land as Local Green Space. Landowners will have opportunities to make representations in respect of proposals in a draft plan."
"020 Would designation place any restrictions or obligations on landowners?
Designating a green area as Local Green Space would give it protection consistent with that in respect of Green Belt, but otherwise there are no new restrictions or obligations on landowners."
"021 Who will manage Local Green Space?
Management of land designated as Local Green Space will remain the responsibility of its owner…."
"In other words, land designated as a Local Green Space has a very high level of protection against development. But it is not as absolute as a registered TVG."
i) Neighbourhood plans were not required to allocate sites for development. The NSP NP encouraged and supported sustainable growth in the village compatible with the draft plan's vision.
ii) Housing development in NSP had not been modest. The minimum target in the LPP1 was for 45 new dwellings over the period of the plan. In fact, there had been 113 completions and commitments for new dwellings in NSP, 55 of which were on former greenfield sites.
iii) The NSP NP sought to ensure that a high quality sustainable development within the settlement boundary came forward, without harm to the historic village. Additionally, the plan included an Exception Site policy to meet local need. Environmental aspects of sustainable development required that the green corridors and setting of the village were maintained as a key feature of the conservation area and historic legacy of the village.
iv) A sustainable brownfield site was allocated for residential development which would meet the need for smaller market housing in a village where there was a greater than average supply of 4+ bedroom houses.
v) The three sites proposed by the Claimant were outside the development boundary and they were all unsustainable. The previous applications for planning permission were refused at appeal because the principle of development at these sites was found to have an unacceptable impact upon the setting, character and appearance of the village, and its conservation area. The reduced scale of development now proposed would not alter the adverse impact.
vi) Prior to the 2015 appeal, a village wide survey was conducted to seek local opinion on the associated benefits which the Claimant was then offering with the development (now a car park, tennis courts, etc). 60% of households responded; 95% of respondents rejected the benefits. The Inspector did not consider the benefits on offer were relevant to the planning application.
i) Each of the proposed designations had been carefully considered and justified in an extensive appendix to the Plan.
ii) There were many places on the settlement boundary where land for future development was not "sterilised" by LGS designations and they rejected the accusation of misuse of the designation.
iii) The NSP Conservation Area appraisal recognised the importance of the open spaces contrasting with the historic development of the village, noting "one of the great assets is the visual and psychological contrast between urban and rural elements" (paragraph 1.10).
iv) There were three key green corridors into the village from the surrounding countryside and the LGS designations helped to maintain this.
v) To the south a green corridor starting with the Church Mead recreation ground (LGS009) and continuing with Fortescue West (LGS8) and Fortescue South (LGS7) visually separated the two sections of the historic village as described in the Appraisal.
vi) The conservation area did not provide adequate protection for these green spaces. Moreover, three of the LGS designations, including LGS7 and LGS8, were outside the conservation area.
vii) LGS8 merited designation as an LGS. The criteria in the Framework (paragraph 100) were met. The site contributed significantly to the sense of tranquillity and beauty surrounding Church Mead. It was a significant feature in views from Church Mead and The George Inn. The view across this area from the George Inn had great cultural value to the village and was an iconic view.
viii) Each proposed LGS had a distinctive character and was a defined area, designated for specific reasons. Even those which were adjacent were all different. None of the LGS amounted to an "extensive tract of land" (PPG paragraph 015).
i) Since 2016 the NSP school has been federated with Rode school. There were now 5 classes across the two schools, which were at 95% capacity. In her letter of 8 July 2019 to the Claimant, the Head Teacher thanked the Claimant for its financial contributions to improving the school facilities, and hoped that it would continue. She said that the school was "vibrant, expanding and sustainable". In a recent Ofsted inspection it was graded 'good', and in a statutory inspection of Anglican and Methodist schools it was graded 'excellent'. The letter of 30 July 2019 from the Chair of Governors referred to the indication in the Somerset School Planning Infrastructure Growth Plan 2019 that school numbers may fall over the next 5 years, but observed that there were many assumptions built into these numbers and for small schools especially the numbers could be quite variable, particularly further into the future. He acknowledged the improved facilities financed by section 106 agreements from previous developments in the village, but going forward, he prioritised non-capital funding from pupil numbers. Disappointingly recent housing developments had not yielded great numbers of children, due in the main to the type and size of properties built. The NSP NP included provision for a mix of 2/3 bedroom houses that were more likely to attract families with young children.
ii) Consideration was being given to the provision of a staff car park within the grounds of the school (letter from head teacher dated 8 July 2019). Planning permission could be applied for this in the usual way. LPP2 did not need to allocate land for this purpose, and in any case, if it was proposed as part of a housing development, it would not pass the statutory tests.
iii) There was no evidence provided to support the assertion that the shop, which was run by the Co-Op, on a site owned by the Claimant, was experiencing trading difficulties. There was retail competition from the Farm Shop and shops outside the village.
iv) The GP practice was consulted in 2018 on whether establishment of a GP surgery or re-instatement of the ad hoc surgery sessions in the village could be promoted by the NSP NP. The GP Practice confirmed that they did not wish to pursue either of these options, preferring to concentrate on its Beckington and Frome sites which were fully equipped.
v) The Parish Council consulted on village hall provision in 2017. Improvements such as a new kitchen, central heating and floor renovation have been undertaken. More than half the cost of a new roof and ceiling will be funded by a National Lottery grant.
vi) The Claimant proposed similar village benefits in its previous planning applications. At the appeals, the Inspector concluded that these "extraneous inducements" did not meet the relevant tests and so could not be taken into account in favour of the proposed development.
"34. National policy, as expressed through the Framework and National Planning Policy Guidance (PPG), sets a very high bar for LGS designation. The opening sentence, which amounts to the 'headline' message, in paragraph 77 of the Framework, states that LGS will not be appropriate for most green areas of open space. This is a clear message that the bar for LGS designation is set at a very high level. I therefore consider that it is clear from national policy that LGS designation should be the exception rather than the rule. One good reason for national policy setting this high bar is explained in paragraph 78 of the Framework, which states that local policy for managing development within LGS should be consistent with policy for Green Belts.
35. In order to reinforce the message that LGS designation is to be used sparingly, paragraph 77 of the Framework sets out three criteria, which spell out where LGS designation should only be used. It is clear from the phraseology that all three of these criteria are necessary for LGS designation. These criteria state that LGS designation should (i) only be used where the green space is in reasonably close proximity to the community it serves; (ii) where it is demonstrably special to the local community (holding a particular local significance); and (iii) where it is local in character and is not an extensive tract of land.
36. Para 76 of the Framework places LGS designation in the context of provision of sufficient homes, jobs and other essential services. Therefore, LGS designation has to be integral to the proper planning for the future of communities, and not an isolated exercise to put a stop on the organic growth of towns and villages, which would be contrary to national policy.
37. The PPG sets an equally high bar in relation to LGS designation and requires that landowners should be contacted at an early stage about proposals to designate any part of their land as LGS and have opportunities to make representations [ID: 37-019-20140306]. Some landowners at the Hearing sessions claimed that this had not happened, and it is not clear to me that this process has been followed in all cases.
38. The clear message in national policy is that LGS designation is to be used sparingly, as part of the overall consideration of the planning and development needs of communities and is not a tool to stop development. The PPG also makes clear that designation of any LGS will need to be consistent with local planning for sustainable development in the area and must not be used in a way that undermines this aim of plan making [ID: 37-007-20140306].
39. It is clear from the allocations maps in the Plan, that in not only the eight sample areas I have already referred to, but more generally in relation to all the maps in the Plan, LGS designations have been distributed liberally within the towns and to an even greater extent in several of the villages.
40. The methodology set out in the Council's Background Paper-'Designation of Local Green Spaces' [Document SD20] omits the 'headline' element of the Framework, that LGS designation will not be appropriate for most green areas of open space, and nowhere in this document does that message come through. Although the document describes each site subject to proposed LGS designation, often in some detail, the criterion of being demonstrably special to the local community is not sufficiently rigorous to comply with national policy, and the resultant distribution of LGS designations in several instances can be said to apply to sites which can be described as commonplace (which I do view as a negative term) rather than of a limited and special nature.
41. I recognise that many if not all the proposed LGS designations are important to local communities; but this is a lower bar than being 'special' and of 'particular local significance'.
42. In the Council's detailed evidence provided in relation to the eight sample areas that I requested, several proposed LGS designations are already within Conservation Areas, and in a few cases within Flood Zones 2 and 3. Moreover, there are examples of extensive tracts of open land, some of it in agricultural use, in particular on the edge of some villages, where LGS designation appears to be at odds with national policy. These factors were not adequately considered in the LGS assessment work.
43. In some villages for example, several green spaces, including agricultural fields, are joined up to form extensive tracts of land, several of which are located within Conservation Areas and other protective designations, which is contrary to national policy. In some villages, the proposed LGS designations approximate to up to a quarter of the entire urban area of the relevant villages, often with Conservation Area coverage and other constraints.
44. Consequently, I suggest the Council has two options:
Option 1: To delete the LGS designations from the Policies Map and remove references to LGS designation where they appear in the Plan. Taking the above factors into account, the Council could then undertake a comprehensive review of LGS methodology and assessment as part of its work on the emerging LPR. MM7 would reflect the Council's decision to follow this option.
Option 2: To revisit the methodology and designations, taking on board the considerations I have highlighted above. This would entail a suspension of the Examination until the additional work and consultation is completed. It may also be necessary to hear evidence on this matter at a further Hearing session. This would inevitably result in a significant delay to the Examination."
"Delete all LGS designations and indicate that they should be reconsidered within either Neighbourhood Plans or the Local Plan Review."
"Replace paras 5.1 – 5.3 as set out below
5.1 A Local Green Space (LGS) is a designation which can be made through Local or Neighbourhood Plans. Designation as a LGS provides similar protection to that of the Green Belt.
5.2 Policy DP2 (LPP1) designates Open Areas of Local Significance and indicates that consideration will be given to whether these sites are designated as Local Green Spaces in LPP2. Following the Examination a review of the approach to Local Green Space designation is required and, in addition to consideration in Neighbourhood Plans, this will be carried out in the emerging Single Plan Review.
5.3 Policy DP2 (LPP1) will continue to provide guidance on the protection of open spaces."
The Claimant's application for planning permission
Grounds of challenge
i) The decision was unlawful as it was not taken with adequate regard to the national policies concerning the designation of LGS and misunderstood the strategic policies in the development plan.
ii) Policy 5 of the NSP NP is inconsistent with national policies for managing Green Belts.
iii) The view that LGS7 and LGS8 are areas of "particular importance" and "demonstrably special" was irrational and/or inadequately reasoned and/or unsupported by the evidence base.
Legal challenges under section 61N(2) TCPA 1990
"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
Case law on the statutory requirements for a neighbourhood plan
56. Sections 38A to 38C of the 2004 Act provide for the making and content of neighbourhood plans. Sections 38A(3) and 38C(5) and Schedule 4B (of the 1990 Act as modified) govern the process by which such plans are prepared and ultimately brought into force. The Examiner must consider whether the "basic conditions" in paragraph 8(2) of schedule 4B are met (paragraph 8(1)). In that regard he or she must be satisfied (inter alia) that it is appropriate to make the plan "having regard to" national policies, and that the plan contributes to the achievement of sustainable development and is "in general conformity with the strategic policies" of the development plan. Paragraph 8(6) of schedule 4B prevents the Examiner from considering any matters falling outside paragraph 8(1) (apart from compatibility with Convention rights).
57. Thus, in contrast to the Examination of a development plan document, the remit of an Examiner dealing with a neighbourhood plan does not include the requirement to consider whether that plan is "sound" (cf. section 20(5)(b) of the 2004 Act). So the requirements of "soundness" contained in paragraph 182 of the NPPF do not apply to a neighbourhood plan. Accordingly, there is no need to consider whether a neighbourhood plan is based upon a strategy prepared to meet objectively assessed development and infrastructure requirements, or whether it represents the most appropriate strategy considered against reasonable alternatives and is based upon proportionate evidence (see also paragraph 055 of the Planning Practice Guidance).
58. The Planning Practice Guidance (in the version dated 6 March 2014) adds that a neighbourhood plan "must not constrain the delivery of important national policy objectives" (paragraph 069). Presumably that would include the twelve core principles set out in paragraph 17 of the NPPF in so far as they are relevant to a particular plan (see paragraph 23 above).
59. The purpose and scope of the neighbourhood plan process was considered by Supperstone J in BDW Trading Limited v Cheshire West and Cheshire Borough Council  EWHC 1470 (Admin). His judgment was handed down on 9 May 2014, well before the decision letter in the present case.
60. In BDW the Claimant challenged the examination of a draft neighbourhood plan which contained a policy limiting the size of new housing sites within or adjacent to a particular settlement to 30 homes. The criticisms included a failure to consider whether constraint policies in the draft plan were compatible with the NPPF (in particular paragraph 47), a failure to address the absence of up-to-date strategic housing policies in a local plan, and a failure to consider whether there was a proper evidential basis to support the draft policy (see paragraphs 78 to 80 of the judgment). The challenge failed.
61. Supperstone J decided that the criticisms failed to appreciate the limited role of the examination of a neighbourhood plan, namely, to consider whether the "basic conditions had been met". He held that the Examiner had been entitled to conclude that the draft plan had regard to the NPPF because the need to plan positively for growth was acknowledged and the relevant policy did not place a limit on the total amount of housing to be built (paragraphs 33 and 81 of judgment).
62. In addition the Judge held:—
(i) The basic condition in paragraph 8(2)(e) only requires the Examiner to consider whether the draft neighbourhood plan as a whole is in general conformity with the adopted development plan as a whole. Whether there is a tension between one policy of the neighbourhood plan and one element of the local plan is not a matter for the Examiner to determine (paragraph 82);
(ii) The Examiner was not obliged to consider the wider ramifications of the draft policy upon the delivery of housing. 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 the 2004 Act in order for an Inspector examining a draft local plan to determine whether such a plan is "sound" (see sections 20(7) to (7C) and 23 of the 2004 Act) (paragraph 83 of the judgment);
(iii) Whereas under paragraph 182 of the NPPF 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 (paragraph 84);
(iv) The Examiner of a neighbourhood plan does not consider whether that plan is "justified" in the sense used in paragraph 182 of the NPPF. In other words, the Examiner does not have to consider whether a draft policy is supported by a "proportionate evidence base" (paragraph 85).
To some extent the principles set out above are reflected in the Secretary of State's PPG. It is to be assumed that those principles were well-known to him when he reached his decision in the present case on 4 September 2014 (see e.g. Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government  EWCH 754 (Admin) at paragraph 19(6))."
"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  EWCA Civ 1610; Solihull Metropolitan B.C. v Gallagher Estates Ltd  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."
"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". The degree of conformity required is "general" conformity with "strategic" policies. Whether there is or is not sufficient conformity to satisfy that requirement will be a matter of fact and planning judgment (see the judgment of Laws L.J. in Persimmon Homes and others v Stevenage Borough Council  1 WLR 334, at pp.344D-345D and pp.347F-348F).
25. Paragraph 8(2)(e) does not require the making of a neighbourhood development plan to await the adoption of any other development plan document. It does not prevent a neighbourhood development plan from addressing housing needs unless or until there is an adopted development plan document in place setting a housing requirement for a period coinciding, wholly or partly, with the period of the neighbourhood development plan. A neighbourhood development plan may include, for example, policies allocating land for particular purposes, including housing development, even when there are no "strategic policies" in the statutorily adopted development plan to which such policies in the neighbourhood development plan can sensibly relate. This may be either because there are no relevant "strategic policies" at all or because the relevant strategy itself is now effectively redundant, its period having expired. The neighbourhood development plan may also conform with the strategy of an emerging local plan. It may, for example, anticipate the strategy for housing development in that emerging plan and still not lack "general conformity" with the "strategic policies" of the existing development plan.
26. This understanding of paragraph 8(2)(e) is consistent with national policy and guidance in the NPPF and the PPG. As Foskett J. recognized (in paragraph 129 of his judgment), such policy and guidance is not an aid to statutory interpretation. However, the policies in paragraphs 184 and 185 of the NPPF reflect the statutory requirement, in paragraph 8(2)(e), for a neighbourhood development plan to be in "general conformity" with the "strategic policies" of the development plan, and the references to the "Local Plan" in those policies of the NPPF are clearly to a statutorily adopted local plan, not an emerging plan. Both NPPF policy and the guidance in the PPG are designed to prevent the mischief of a neighbourhood development plan frustrating the strategy of an up-to-date local plan. But the encouragement in paragraph 184 for local planning authorities to "set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible" does not imply that only when an up-to-date local plan has already been adopted will it be possible for a neighbourhood development plan to be taken though its own statutory process. The guidance in the PPG explicitly accepts that a neighbourhood development plan can be prepared "before or at the same time" as a local plan, and explains how a local planning authority should proceed if the neighbourhood development plan is brought forward first. Such guidance would have been unnecessary and inappropriate if the statutory scheme required the preparation of the neighbourhood development plan to be held back until an up-to-date local plan is in place."
Grounds 1 and 3
i) whether the designation was "consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services"; and
ii) whether the designation was "capable of enduring beyond the end of the plan period".
"(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, 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),
i) Paragraph 13: the application of the presumption of sustainable development in neighbourhood plans.
ii) Paragraph 16: guidance on plan making.
iii) Paragraphs 28 and 29: supporting strategic policies in the Local Plan and developing non-strategic policies.
iv) Paragraph 31: the preparation and review of plans should be underpinned by relevant and up-to-date evidence which should be adequate and proportionate, focused tightly on supporting and justifying the policies concerned, and taking into account relevant market signals.
"Policy 1: Settlement Boundary. Mendip LP1 Policy: CP2
The boundary has been determined as required by Policy CP2 with regard to development since 2006 and the views of the local community. It is also the boundary proposed in the emerging Mendip LP2. Policy 1 implements Objective 22 of the LP1."
"Policy 2: Bell Hill Garage Site. Mendip LP1 Policy: DP14
Policy DP14 in the LP1 promotes a mix of dwelling types and sizes in residential development that reflect local need. Policy 2 sets out this requirement in the local context of NSP and implements Objective 16 of the LP1."
"Policy 3: Exception Sites. Mendip LP1 Policy: CP3, DP12
Policy 3 complies with Policy DR12 in LP1, and gives additional local detail and requirements. It is implementing Objectives 15 – 16 of the LP1."
"Policy 5: Local Green Space. Mendip LP1 Policy DP2
The LP1 did not allocate LGS, but stated in the justification to Policy DP2 (para 6.15) that LP2 or neighbourhood plans would review the OALS and designate some or all as LGS. Policy 5 implements Objective 22 of the LP1."
i) Encourage sustainable housing development within the village settlement boundary
ii) Ensure that the location, design and scale of any housing development is managed in order to maintain the character and heritage of the village
iii) Protect and enhance the village's key green spaces and recreational facilities;
iv) Support people with a local connection who wish to remain within or return to the community
v) Promote energy efficient buildings and increasing resilience to climate change
"Given this background, the Plan proposes a settlement boundary designation which includes the new development and focuses on housing that will meet the needs of local people. Whilst it is accepted that the housing figures in the LP1 are a minimum, it is not obligatory for a neighbourhood plan to allocate sites. MDC has not raised any objection to the approach taken in the Plan and I do not consider it will constrain or otherwise frustrate any spatial development strategy."
Local Green Spaces
LGS7 "The site has recreational value and allows views across the ponds from higher land to the north. It is also important in views across Church Mead, and although not in the foreground, the presence of open countryside beyond the immediate confines of Church Mead is visually important."
LGS8 "Site contributes to the village's rural character and the street scene. It contributes significantly in the sense of tranquillity surrounding Church Mead and views across Church Mead."
i) Land is not the subject of a planning permission for development
ii) Space is not allocated or proposed for development in the Development Plan
iii) Is not an extensive tract of land and is local in character
iv) Within close proximity of the community it serves
vii) Protecting important view towards or from a significant local feature
viii) Important part of street scheme or the character of the settlement.
"Church Mead (LGS009) is a stunningly attractive village green with established recreational space for organised sport and events. The views from this site to the church and surrounding countryside are iconic.
The Churchyard and adjoining paddock (LGS006) are historically significant, surrounding the listed church and contribute to views across Church Mead.
Fortescue Fields West (LGS008) allows key views out to the open country beyond the village. It maintains the countryside link into Church Mead and gives an understanding of the historic evolution of the village. Great importance was given to this by the Appeal Inspector in 2015…
Fortescue Fields South (LGS007) is important for its beauty and tranquillity. It allows views across open land to the important focal point of the church tower. Through its network of PROW's and permissive paths it has become an important amenity space. The links with the permissive path on Fortescue West and Vicarage Lane give a much used 'circular' walk'. An important wildlife habitat is developing in and around the drainage ponds. It also allows an appreciation of the village's unique open aspect with its long views into Norton…. "
"LGS 007 and 008 are designated individually; together with Church Mead (within the conservation area) they form a vital green corridor.
As well as their individual qualities both LGS 007 & 008 have a crucial role in maintaining the historic setting of Norton St Philip as a village that grew up around two centres with the countryside coming into the village.
If the vital green separation between the village on the ridge along High Street and the more rural cottage village form around the church is to be maintained, the designation of LGS008 Fortescue Fields West is essential.
The comments from the Appeal Inspector given in para 1.2 are also relevant.
The designation satisfies the criteria for LGS in both the NPPF and Mendip DC's Designation of Local Green Spaces' document…"
"52 ….. The appeal site lies immediately adjacent to but outwith the Conservation Area boundary here and thus lies within its setting. Church Mead is an integral part of the character and appearance of the Conservation Area, forming a transition between the village and the adjacent open countryside. It is adjoined by built development to the north/northeast (centred on the George Inn) and to the west (around the church). Whilst the Conservation Area is generally inward looking, its significance also derives from outward views afforded by its elevated position in the landscape. That is amply demonstrated in the sudden, quintessentially English view out from the George car park and the summit of Bell Hill over the lower slopes, including Church Mead which forms an important visual link between the centre of the village and the countryside beyond. I am in no doubt that the open undeveloped nature of the appeal site has a positive role in the significance of the Conservation Area, allowing for an appreciation and understanding of the historic evolution of Norton St Philip.
53. Even with reinforcement of the hedge/tree line along the northern boundary of the appeal site, the development proposed would create a much stronger urban presence than is currently the case in those views and would intrude into the experience of the Conservation Area. On completion, the development would also link the Fortescue Fields site with other parts of the village, including recently approved residential development on land to the west. As a consequence, Church Mead would be enclosed on all sides by built form and the crucial link through to the open countryside beyond would be obliterated.
54. The planning guidance confirms that substantial harm may arise from works to an historic asset or from development within its setting. I recognise that substantial harm is a high test and may not arise in many cases. In this case however, I consider that the development proposed would have a considerable adverse impact on the setting and significance of the Conservation Area, completely altering its historic development pattern and plan form, with significant consequences for one of the most important and clearly cherished views into and out of the Area. To my mind, the scale of that harm verges on substantial. There would be corresponding harm to the established character and appearance of the area more generally. There would be conflict therefore with policies DP1, DP3, DP4 and DP7 of the Part 1 Plan DP3 of the Part 1 Plan."
"The supporting text explains that the LGSs are also proposed in the emerging LP11. Whilst the NPPF is clear that plans should serve a clear purpose and avoid unnecessary duplication, it is more than likely that this Plan will be adopted before the LP11. Any duplication is therefore likely to be incurred by the LP11. There is no reason for blanket deletion of this policy whilst I accept the point that there will also be little need for duplication between the Plan and LP11. I consider this is a matter for MDC to address as both plans progress."
"The NPPF explains that LGSs are green areas of particular importance to local communities [Footnote NPPF paras 99, 100, 101]. The management of development in such areas is consistent with Green Belt policy.
The identification of LGSs should be consistent with local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services. The NPPF is clear that the designation should only be used where the green space is in reasonable clear proximity to the community it serves, is demonstrably special and is local in character and not an extensive tract of land." (emphasis added)
"Green Spaces that people value will be protected. The historic setting of the village will be protected, offering an environmental and tourism benefit, but removing potential development sites."
"Whilst many of the proposed LGSs are located beyond existing development, this reflects the topography and the historic nature of development and I do not regard it as a ruse to prevent development."
"007 Fortescue Fields South I saw that the land includes balancing and drainage ponds and is used for recreation and in particular its footpaths. There is seating too. Short and long distance views are gained from these areas over the surrounding countryside.
008 Fortescue Fields West is an open area adjacent to development. There is a footpath down steps that leads to Church Mead which affords views across the land out across to the countryside and to the village. This land is an important part of the setting of the village. There does not appear to be any public access to this land, but this, by itself, is not a determining factor in LGS designation. Two representations query or object to this designation."
"I consider that all of the proposed LGSs are in reasonably close proximity to the community and that all are local in character and individually do not comprise extensive tracts of land. I have also considered whether areas 006, 007, 008 and 009 which adjoin each other together form an extensive tract of land. However, they all differ in appearance, nature and reason for designation and I have concluded that, in this case, this is not an issue of concern."
Whilst many of the proposed LGSs are located beyond existing development, this reflects the topography and the historic nature of development and I do not regard it as a ruse to prevent development.
Turning now to whether all the proposed LGSs are demonstrably special and hold a particular local significance, I consider that in each case, this has been demonstrated satisfactorily. I have based my assessment on the criteria in the NPPF rather than in the background paper prepared for LP11. It should also be noted that beauty, historic significance, recreational value, tranquillity or wildlife given in the NPPF are examples of what might make a green area demonstrably special to a local community and of particular local significance and is not, on my reading, an exhaustive list.
I have also considered whether there is any additional benefit to be gained by the designation for sites falling within other designations such as a CA [Footnote PPG para 011]. I consider that there is additional local benefit to be gained by identifying those areas of particular importance to the community as the designations serve different purposes.
The policy designates these areas, cross references Figure 2 (but it should be 5) which shows the areas and only permits development which enhances the use and reasons for the designation of the LGSs. It is clearly worded. With a modification for accuracy, the policy will meet the basic conditions."
i) The examination of the NSP NP, culminating in the Examiner's Report dated 19 July 2019, was independent of the LPP2 process, and it was undertaken in accordance with a prescribed statutory scheme. The LPP2 Inspector had no jurisdiction over the NSP NP: the LPP2 Inspector does not have an appellate or review power in respect of the judgments of NP Examiners.
ii) The LPP2 Inspector was, of course, entitled to express his views on the proposed LGS designations since they were included in the draft LPP2 before him.
iii) However, since the LPP2 Inspector's Interim Note was published on 10 September 2019, it post-dated the Examiner's Report and the Defendant's decision accepting the Examiner's recommendations on 2 September 2019. Therefore, in law it was not a matter which the Examiner or the Defendant could or should have taken into account in reaching their decisions.
iv) Any potential conflict between the NSP NP and LPP2 on LGS designations has been avoided by the LPP2 Inspector's proposal, accepted by the Defendant, that LGS designations should be removed from LPP2, and instead addressed in neighbourhood plans and the forthcoming Local Plan Review.
v) Thus, the LPP2 Inspector's views were only relevant to this challenge insofar as they lent the support of an experienced professional planning inspector to the Claimant's critique of the NSP NP process, in particular, the evidence relied upon and the proper application of the Framework and PPG.
vi) The statutory tasks of the LPP2 Inspector and the Examiner were different. As Holgate J. explained in Crownhall Estates:"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"."
vii) LPP2 was examined under transitional arrangements to which the Framework March 2012 edition applied. The Inspector took as the "headline message" of the policy the opening sentence in paragraph 77 that "LGS will not be appropriate for most green areas of open space", which the Defendant's background paper did not reference. However, the NSP NP was examined under the February 2019 edition of the Framework in which that opening sentence no longer appears. The opening words of paragraph 100 merely state that "The Local Green Space designation should only be used where…" and then sets out the criteria. The February 2019 policy is, in my view, more precise. In light of the submissions made to me by the Claimant, I observe that it does not purport to apply a test of exceptionality, nor to cap the number of designations which may be appropriate in any particular area.
viii) The Inspector's observations about the over-use of LGS designations were made at a high level of generality. He was considering hundreds of potential designations in towns and villages across the Mendip District, which is a rural and scenic area, with many green spaces. Although he focused on 8 sample areas, including NSP, he did not make any specific findings in respect of these sample areas or their proposed designations. He made some site visits, but it is not known whether he visited NSP. He did not mention the Examiner's Report, and it is not clear whether and to what extent he considered the evidence available to her, such as the representations on designation made by the Parish Council, the Appeal Decision from 2015, the Character Assessment etc. I find it inconceivable that the Inspector intended to reject every proposed designation in NSP. For example, even the Claimant accepts that the designation of Church Mead in NSP is appropriate.
ix) In light of the above, I am not persuaded that the well-evidenced assessments carried out by the Examiner, who considered NSP in depth and had the benefit of viewing each proposed designation, have been invalidated by the LPP2 Inspector's general critique.
x) In support of that conclusion, I reiterate that the Examiner stated that she based her assessment on the criteria in the Framework rather than the criteria in the background paper prepared for LPP2.
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned 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."
"Development on Local Green Spaces will only be permitted if it enhances the original use and reasons for the designation of the space."
"The policy designates these areas, cross references Figure 2 (but it should be 5) which shows the areas and only permits development which enhances the use and reasons for the designation of the LGSs. It is clearly worded. With a modification for accuracy, the policy will meet the basic conditions." (emphasis added)