Killian Garvey successful in the Court of Appeal concerning the interpretation of Neighbourhood Plan Policies

Killian Garvey, acting for Beechcroft Land, assisted in securing a successful judgment in the matter of Chichester DC v (1) Secretary of State for Housing, Communities and Local Government (2) Beechcroft Land Ltd [2019] EWCA 1640.

Killian had previously won an appeal decision Southbourne, Chichester for the Appellant on the basis that:

The development was outside the settlement boundary and contrary to the development plan;
The Council were shown to not have a 5 year housing land supply and thus their development plan was out of date; and
There was no conflict with the policies in the recently adopted Southbourne Neighbourhood Plan (‘NP’).

The relevant policy in the Southbourne NP read as follows:

The Neighbourhood Plan will support development proposals located inside the Settlement Boundaries of Southbourne/Prinsted, Nutbourne West and Hermitage/Lumley/Thornham, as shown on the Policies Map, provided they accord with other provisions of the Neighbourhood Plan and development plan.

The Inspector determining the appeal found that whilst this policy supported development inside Southbourne’s settlement boundary, it said nothing about development outside the settlement boundary.

The Council sought to challenge this decision, arguing that it was implicit from this policy that it did restrict development outside of Southbourne’s settlement boundary.

The Council’s challenge was dismissed at first instance by Upper Tribunal Judge Andrew Grubb.

In dismissing the appeal, the Court of Appeal determined that the conflict in this instance was with the relevant local plan policies, which sought to restrict development outside of the Southbourne settlement boundary:

53… [the inspector] realized that the actual conflict with the development plan in this case was with the local plan, not with the neighbourhood plan, and – as Mr Garvey submitted – he did not make the mistake of counting that conflict twice, as if it were a conflict with both plans.

The Court similarly accepted the argument that any other interpretation of the neighbourhood plan would serve to undermine the policies of the local plan:

… No policy in the neighbourhood plan replicates Policy 45 or provides any different approach to proposals for development outside settlement boundaries. There was no need to include such a policy in the neighbourhood plan, and it would have been inappropriate to do so. As Mr Garvey submitted, if a stricter – or more liberal – policy for development outside settlement boundaries had been inserted in that plan, it would have upset the carefully formulated policies for such proposals already in place in the recently adopted local plan. It would have clashed with local plan Policies 2 and 45.

The Court distinguished its earlier judgments in Crane v SSCLG [2015] EWHC 425 (Admin) and Gladman Developments Ltd v Canterbury CC [2019] EWCA Civ 669, on the basis that in those cases there was a comprehensive suite of policies:

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.

There are two big principles that emerge from this case.

The first is that the Court of Appeal agreed with the Courts below that a neighbourhood plan policy has no greater status than a local plan policy:

… it seems to me that the policy presumption in paragraph 198 does not have the effect of enlarging the statutory presumption in favour of the development plan in section 38(6) of the 2004 Act …

Secondly, the Court of Appeal further clarified that one can make ‘inferences’ in interpreting planning policies where this is appropriate to do so. Thus, the Court of Appeal have held that it can still be possible to make a necessary inference when reading a policy, as in Gladman v Canterbury, but in this matter the background and context meant that this was inappropriate to do so.

Killian Garvey was instructed by Paul Maile and Kate Radford from Eversheds Solicitors.

Guy Wakefield, from Ridge & Partners, had been the planning consultant at the inquiry, who persuaded the Inspector of this interpretation of the relevant policies.

A copy of the final judgment is available here.

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