Legal Viewpoint: Court tests interface between planning policy layers, by Killian Garvey

A recent Court of Appeal judgment revolved around the interpretation of a policy in a neighbourhood plan for a West Sussex village.

The policy stated that the neighbourhood plan will support development proposals located inside the settlement boundaries, as shown on the policies map, "provided they accord with other provisions of the neighbourhood plan and development plan".

The case followed an appeal inspector’s decision (DCS Number 200-007-945) to grant Beechcroft Land Ltd planning permission for a residential scheme outside the village. In doing so, he found that while the disputed policy supported development inside the village’s settlement boundary, it said nothing about development outside of it. The council sought to challenge this decision, arguing that it was implicit that the policy restricted development outside the settlement boundary.
 
In dismissing the council’s appeal, the Court of Appeal determined that the conflict in this instance was with the relevant local plan policies, which meant there was no need to infer a conflict with the neighbourhood plan. The judges noted that the inspector realised that the actual conflict with the development plan in this case was with the local plan, not the neighbourhood plan, "and he did not make the mistake of counting that conflict twice, as if it were a conflict with both plans".

The court distinguished the decision from its earlier judgment in Gladman Developments Ltd v Canterbury City Council [2019]. It said: "Unlike Gladman v Canterbury City Council, the policies of the local plan do not require any ‘natural and necessary inference’ to be drawn in deciding whether a proposal such as Beechcroft’s is in accordance with the development plan"

"It is not necessary to deduce a conflict with the development plan from the absence of support in a specific policy. The policies of central relevance to the proposal are clear-cut, and the proposal was plainly contrary to them. The conflict with policies 2 and 45 of the local plan was not merely a matter of inference. And it was distinct."

Two principles emerge from this case. Firstly, in paragraph 53 of the judgment, the Court of Appeal held that a neighbourhood plan policy has no greater status than a local plan policy. Secondly, it makes clear that while one can make "necessary inferences" in interpreting planning policies, this only applies where it is appropriate to do so. In this case, no inference was required, as the local plan policies explicitly addressed what should occur outside the settlement boundary.

Case: Chichester District Council v Secretary of State for Housing, Communities and Local Government and Beechcroft Land Ltd; Date: 9 October 2019; Ref: [2019] EWCA 1640

Killian Garvey is a barrister at Kings Chambers. He acted for the developers at the appeal inquiry and at the Court of Appeal.


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