A neighbourhood development plan made pursuant to section 38A of the Planning and Compulsory Purchase Act 2004 could include site allocation policies.

The Court of Appeal so stated when dismissing the appeal of the claimant, Larkfleet Homes Ltd, against a decision of Collins J [2014] EWHC 4095 (Admin); [2015] PTSR 589 that it was permissible to allocate specific sites for particular development in neighbourhood development plans.

The local planning authority’s core strategy, a development plan document (“DPD”) within the meaning of the Planning and Compulsory Purchase Act 2004, provided for development in land in Uppingham. The location and details of future housing development were to be determined through the site allocations and policies DPD (“SAPDPD”), which required the approval of a planning inspector. The planning authority’s SAPDPD submission document stated that no sites were allocated for development in Uppingham in the SAPDPD since a separate neighbourhood plan for Uppingham was being prepared by the town council that would cover Uppingham town and parts of the surrounding area and be subject to separate consultation, examination and referendum under the neighbourhood planning process. The Uppingham Neighbourhood Development Plan (“UNP”) was produced in which three sites were selected for residential development to the west of the town, none of which included the site in which the claimant had an interest. The planning authority decided to allow the UNP to proceed to a neighbourhood planning referendum. The claimant sought judicial review of that decision on the grounds that the legislation, particularly section 17(7)(za) of the Planning and Compulsory Purchase Act 2004 and regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012, did not permit allocation of specific sites for particular development in neighbourhood development plans, and that there had been a failure properly to carry out the required environmental assessment process because of a failure to consider whether the proposals would cause any significant environmental effects. The judge dismissed the claim.

RICHARDS LJ said that section 17 of the 2004 Act had nothing to do with neighbourhood development plans. It fell within a part of the 2004 Act dealing with local development and the functions of local planning authorities. Subsection (3) showed that the section was concerned with local development documents setting out the policies of the local planning authority relating to the development and use of land in their area. The power in subsection (7)(za) to make regulations prescribing “which descriptions of documents are, or if prepared are, to be prepared as local development documents” related to what a local planning authority might or might not do as regards its planning policies, in particular what it had to include in local development documents (thereby limiting reliance on supplementary planning guidance which has not gone through the full formal process). The structure of regulation 5 of the Local Planning Regulations reflected the wording of the subsection: regulation 5(1) dealt with documents which “are to be prepared” as local development documents, regulation 5(2) with documents which “if prepared, are to be prepared” as local development documents. It was plain that in each case the regulation related to documents prepared or to be prepared by a local planning authority, even though express reference to a local planning authority was made only in regulation 5(1).

Neighbourhood development plans, by contrast, were not prepared by a local planning authority and the statute did not even use the term “prepared” in relation to them: they were proposed by a qualifying body under section 38A and were made by a local planning authority on completion of the process so initiated. More important, however, was the contextual point that neighbourhood development plans were governed by a separate statutory regime. That was underlined by the fact that the relevant statutory provisions, sections 38A to 38C, were inserted into a different part of the 2004 Act from that dealing with local development documents; and the relevant definition of “development plan” in section 38(3) drew a clear distinction between, on the one hand, development plan documents (which, by section 37, were local development documents) and, on the other hand, neighbourhood development plans.

The provisions relating specifically to neighbourhood development plans were plainly wide enough to allow site allocation policies to be included in such plans. It would indeed be very surprising if site allocation policies could not be included in them, since the location of housing was likely to be the single most important planning issue for a neighbourhood. In any event, section 38B dealt in terms with the provision that may be made or may not be made by neighbourhood development plans. There was nothing in the section itself to restrict the inclusion of site allocation policies. There was an express power in subsection (4) for regulations to restrict the provision that may be made, yet the regulations under the section, the Neighbourhood Planning Regulations, contained no material restriction. In short, the statutory regime governing neighbourhood development plans clearly allowed such plans to include site allocation policies.

The judge had not been wrong to reject the argument that the author of the report on the screening assessments failed to consider positive effects as well as negative effects in finding that the UNP was not likely to have significant environmental effects. The judge’s conclusion did not take benevolence beyond its permissible limits.

SHARP and MOORE-BICK LJJ agreed.