The Queen (on the application of Larkfleet Homes Ltd) v Rutland County Council Uppingham Town Council (Interested Party) Secretary of State for Communities and Local Government (Intervener)

JurisdictionEngland & Wales
JudgeLord Justice Richards,Lady Justice Sharp,Lord Justice Moore-Bick
Judgment Date17 June 2015
Neutral Citation[2015] EWCA Civ 597
Date17 June 2015
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2014/4310

[2015] EWCA Civ 597

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Mr Justice Collins

[2014] EWHC 4095 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

(Vice-President of the Court of Appeal (Civil Division))

Lord Justice Richards

and

Lady Justice Sharp

Case No: C1/2014/4310

Between:
The Queen (on the application of Larkfleet Homes Limited)
Appellant
and
Rutland County Council
Respondent

and

Uppingham Town Council
Interested Party

and

Secretary of State for Communities and Local Government
Intervener

David Elvin QC and Charles Banner (instructed by Marrons Shakespeares) for the Appellant

Alan Evans (instructed by Head of Legal Services, Peterborough City Council) for the Respondent

Nathalie Lieven QC (instructed by the Government Legal Department) for the Intervener

The Interested Party did not appear and was not represented at the hearing of the appeal

Hearing date: 4 June 2015

Lord Justice Richards
1

The primary issue in this appeal is whether a neighbourhood development plan made pursuant to section 38A of the Planning and Compulsory Purchase Act 2004 as amended ("the 2004 Act") may include site allocation policies.

2

The appellant ("Larkfleet") is a house-building company with a commercial interest in land to the west of Ayston Road in the town of Uppingham in the county of Rutland ("the Ayston Road land").

3

The respondent ("the Council") is the local planning authority for Rutland. In July 2011 the Council adopted a Core Strategy in which Uppingham was identified as a sustainable location for new development. Early versions of the related Site Allocations and Policies Development Plan Document ("the Site Allocations and Policies DPD" or "the SAPDPD"), which were the subject of consultation in 2011 and 2012, made provision in respect of Uppingham and in the 2011 version listed the Ayston Road land as a potential site. Such provision was not, however, carried forward into the version published for consultation in April 2013 and submitted to the Secretary of State for public examination in July 2013. This was because Uppingham Town Council had by then put in motion the process for making a neighbourhood development plan for the area pursuant to the statutory regime introduced by the Localism Act 2011 ("the 2011 Act"). The position was explained as follows in the April 2013 version of the Site Allocations and Policies DPD:

"1.9 A separate Neighbourhood Plan for Uppingham is being prepared by Uppin gham Town Council. This will cover Uppingham town and parts of the surrounding area and will be subject to separate consultation, examination and referendum under the Neighbourhood Planning process.

1.10 The Uppingham Neighbourhood Plan will consider proposals for residential, employment and other land use allocations in its area and allocate sites where appropriate. Consequently no sites are allocated for development in Uppingham in this Site Allocations and Policies DPD although all other policies of the plan will apply in this Area.

1.11 Sites for residential and employment development in Uppingham that were previously identified in the Preferred Options version of this Site Allocations and Policies DPD are not carried forward in this version of the plan but will be put forward to Uppingham Town Council together with the responses to consultation that have been received for consideration through the Uppingham Neighbourhood Plan."

4

Larkfleet made detailed representations objecting to the omission of allocations relating to Uppingham from the Site Allocations and Policies DPD, but those representations were rejected by the inspector and there was no material change to the document as adopted by the Council in October 2014.

5

The initial draft of the Uppingham Neighbourhood Plan ("the UNP") was published in May 2013 and was the subject of public consultation in June-July 2013. The draft contained a policy allocating three sites for housing development at Uppingham. There were certain differences from the allocation previously proposed in the Site Allocations and Policies DPD. The three sites were retained in a revised draft consulted on later in the year, and in the final draft approved by Uppingham Town Council in December 2013. The Council then appointed an independent examiner who issued a report in May 2014, recommending that, subject to certain proposed modifications, the UNP should proceed to a referendum. The referendum took place in July 2014 and produced a strong majority vote in favour of the proposal.

6

At all material stages of the UNP process, Larkfleet made submissions, repeated in these proceedings, that adoption of the UNP would be unlawful. The UNP is now "on hold" pending the determination of the proceedings.

7

The proceedings take the form of a claim for judicial review of the Council's decision of 29 May 2014 to proceed to a referendum on the UNP. The claim was dismissed by Collins J. Permission to appeal was granted by Sullivan LJ on two grounds, to the effect that (1) pursuant to regulations under section 17(7)(za) of the 2004 Act, site allocation policies may be contained only in a local development document adopted under section 17, not in a neighbourhood development plan made under section 38A, and (2) the decision not to carry out a strategic environmental assessment ("SEA") in respect of the UNP was legally flawed by a failure to consider whether the plan was likely to have significant positive effects on the environment. Permission was subsequently granted to the Secretary of State to intervene on ground (1) alone.

8

At the hearing of the appeal, submissions were addressed to us by Mr David Elvin QC on behalf of Larkfleet, Mr Alan Evans on behalf of the Council, and Ms Nathalie Lieven QC on behalf of the Secretary of State.

Ground (1): whether a neighbourhood development plan may contain site allocation policies

The legislative provisions

9

In considering the relevant legislative provisions, it is important to keep in mind the structure of the 2004 Act. In particular:

i) Part 2 is headed "Local development". It includes a group of sections under the sub-heading "Documents", one of which is section 17, relating to local development documents. It also includes, in section 37, provisions concerning the interpretation of terms used in Part 2.

ii) Part 3 is headed "Development". It starts, in section 38, with a set of provisions relating generally to the development plan. That is followed by sections 38A to 38C, relating specifically to neighbourhood development plans.

10

It is also relevant to note the legislative history. Substantial changes to the local planning regime in the 2004 Act, including the introduction of section 17(7)(za), were made by the Planning Act 2008 ("the 2008 Act"). Further changes, including the introduction of the regime for neighbourhood development plans, were made by the 2011 Act.

11

A helpful starting point for consideration of the individual provisions is section 38 which provides, so far as material:

" 38. Development plan

(1) A reference to the development plan in any enactment mentioned in subsection (7) [which includes the 2004 Act and other planning Acts] must be construed in accordance with subsections (2) to (5).

(3) For the purposes of any [area other than Greater London] in England the development plan is –

(a) the regional strategy for the region in which the area is situated (if there is a regional strategy for that region), and

(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area, and

(c) the neighbourhood development plans which have been made in relation to that area.

(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.

(9) Development plan document must be construed in accordance with section 37(3).

(10) Neighbourhood development plan must be construed in accordance with section 38A."

12

By section 37(3), a development plan document is "a local development document which is specified as a development plan document in the local development scheme". By section 37(2), "local development document must be construed in accordance with Section 17". Section 17 provides, in turn:

" 17. Local development documents

(3) The local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area.

(7) Regulations under this section may prescribe:-

(za) which descriptions of documents are, or if prepared are, to be prepared as local development documents

(a) which descriptions of local development documents are development plan documents …

(8) A document is a local development document only in so far as it or any part of it:

(a) is adopted by resolution of the local planning authority as a local development document;

(b) is approved by the Secretary of State under section 21 or 27".

13

Regulations under section 17 are to be found in the Town and Country Planning (Local Planning) (England) Regulations 2012 ("the Local Planning Regulations"). Regulation 5 provides, so far as material:

" 5. Local development documents

(1) For the purposes of section 17(7)(za) of the Act the documents which are to be prepared as local development documents are –

(a) any document prepared by a local planning authority individually or in...

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3 cases
  • R Swan Quay LLP v Swale Borough Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 27 January 2017
    ...of the statutory framework relating to neighbourhood plans. In R (on the application of Larkfleet Homes Ltd) v Rutland County Council [2015] EWCA Civ 597, the Court of Appeal identified the bespoke and separate nature of the neighbourhood planning statutory regime, distinct from the regime ......
  • Dr Anna Hoare v The Vale of White Horse District Council Oxfordshire County Council and Another (Interested Parties)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 7 July 2017
    ...area specified in the plan." Such policies may include site allocation policies: R (Larkfield Homes Ltd) v Rutland County Council [2015] EWCA Civ 597, [2015] PTSR 8 However "a neighbourhood development plan may not include provision about development that is excluded development": see sect......
  • R (on the application of DLA Delivery Ltd) v Lewes District Council Newick Parish Council (Interested Party)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 February 2017
    ...L.J., with which Moore-Bick and Sharp L.JJ. agreed, in R. (on the application of Larkfleet Homes Ltd.) v Rutland County Council [2015] EWCA Civ 597, at paragraph 24). Regulation 5(6), however, provides that an SEA "need not be carried out … (a) for a plan … of the description set out in par......
1 books & journal articles
  • Neighbourhood Planning
    • United Kingdom
    • Wildy Simmonds & Hill Planning Law. A Practitioner's Handbook Contents
    • 30 August 2019
    ...development plan ( R (Larkfleet Homes Ltd) v Rutland County Council [2015] PTSR 589 (see para 22) and in the Court of Appeal at [2015] PTSR 1369 (see para 21)). For instance, a neighbourhood development plan can include site allocation policies for housing in the absence of a development pl......

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