AVDC Update on NPs

Over the weekend, parish councils in the Aylesbury Vale received copies of a document suggesting that AVDC would no longer be taking Neighbourhood Plans into account when considering local planning applications.

Yesterday (Monday 3rd August) AVDC moved to quell this hosility with a brief covering statement. It has now issued a much more detailed and lengthy announcement, as reproduced below.
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Clarification of the approach to decision making on planning applications in relation
to neighbourhood plans.

It has been brought to our attention that an email dated 1st August 2015 has been circulated
by a Winslow Town Councillor to a number of parish and town Councils with a subject
heading of "AVDC Abandons Neighbourhood Plans". This we believe was based on a brief
advice note that AVDC Officers had prepared for AVDC Councillors regarding a recent High
Court judgement that was relevant with regards to neighbourhood plans and determining
planning applications.

Firstly the Council wishes to clearly state that it is not as the email states abandoning
neighbourhood plans. This is absolutely NOT the case and there is no change to the
Council's support for Neighbourhood Plans.

The emails in circulation also suggest that AVDC has made a 'decision' in relation to this
matter and again for clarification there has been no decision.

We appreciate the significant concerns that have arisen in a number of communities as a
result of the emails in circulation and the information provided therein. We hope that this
note helps to clarify the position.

The AVDC briefing note was prepared and circulated to all District Councillors in order to
make them aware of the recent High Court judgement, which is referred to as Woodcock
Holdings v Secretary of State for Communities and Local Government because it will have a
bearing on how we consider planning applications for new housing developments where
neighbourhood plans are in place or emerging.

This High Court judgement can be seen in its entirety via the following link:
www.bailii.org/ew/cases/EWHC/Admin/2015/1173.html

It overturns the Secretary of State's previous decision to refuse permission for development on the basis of a neighbourhood plan in an area where there was no 5 year supply of housing.

We looked at this judgement very carefully to clarify its implications and took the view, which
is supported by legal advice, that the judgement means that housing supply policies in
neighbourhood plans, whether they are already "made" or are in draft form, are considered
to be termed 'out of date' in NPPF terms because Aylesbury Vale only has 3.1 years of
housing supply. That calculation is based on the content of the Housing and Economic
Development Needs Assessment (HEDNA) which was the subject of a report to VALP
Scrutiny on Wednesday 29 July 2015. The HEDNA has increased predicted housing need in
Aylesbury Vale by more than 30% compared to previous estimates.

The phrase 'out of date' arises from paragraph 49 of the NPPF which states that relevant
policies for the supply of housing should not be considered 'up to date' if there is no five-year
supply of deliverable housing sites. The Woodcock judgement makes it clear that this
applies as much to Neighbourhood Plans as it does to Local Plans where there is less than 5
years supply of housing. In the judgement it states "the Secretary of State accepted that the
trigger in paragraph 49 applies just as much to "housing supply policies" in a neighbourhood
plan which has been "made" (i.e. formally adopted) as to other types of statutory
development plan". The Secretary of State has therefore recognised that his previous
decisions relating to neighbourhood plans were based on an incorrect interpretation of
Government planning policy.

The term 'out of date' also appears in paragraph 14 of the NPPF which states that a
presumption in favour of development applies where policies are out of date "unless any
adverse impacts of doing so would significantly and demonstrably out weigh the benefits
when assessed against the policies in this Framework when taken as a whole".
This contrasts significantly with a previous judgement made in February 2015, which was
referenced throughout the Woodcock decision, where paragraph 198 of the NPPF had been
used by the Secretary of State as a reason for overriding paragraph 49 and this position had
been supported by the High Court. This was seen as giving Neighbourhood Plans special
status where there was no five-year supply of housing land so that applications which
conflicted with their housing policies could be refused principally on the basis of those
policies. However, the Woodcock judgement also states that the Secretary of State accepts
that paragraph 198 does not give "enhanced status to neighbourhood plans as compared
with other statutory development plans". The Secretary of State has therefore agreed that
his interpretation of paragraph 198 of the NPPF which formed the basis of the previous
judgement was not correct.

The previous High Court judgement is referred to as Crane and can be seen via this link:
www.bailii.org/ew/cases/EWHC/Admin/2015/425.html

Court decisions often clarify how Government planning policy should be applied by decision
makers. The Council therefore has to have regard to legal judgements in the courts,
particularly those relating to the interpretation of Government planning policy on housing. It
simply cannot ignore them without being found to be acting unreasonably when it determines
relevant planning applications.

The implications of this recent judgement are that policies in made Neighbourhood Plans
relating to housing supply cannot be given full weight by the Council in making a decision.
The court decision makes it clear that where there is no five-year housing supply the weight
given the neighbourhood plan housing supply policies is reduced from what it would be
where the housing supply was adequate.

This does not mean that only little or no weight will be given to neighbourhood plans as
seems to have been suggested in the e mails circulated to the parish and town councils.
Reduced weight will be given to housing supply policies but they will still be taken into
account and all other policies in a made neighbourhood plan will be given full weight in the
decision making process.

Please be assured that we are committed to giving careful consideration to the
neighbourhood plan policies and the local community's involvement in shaping the
development at their village or town prior to any recommendation being made on any
relevant planning application.

The Council is also fully committed to encouraging neighbourhood planning and is investing
a lot of time and resources in supporting those communities who are progressing their
neighbourhood plans and those already made as part of the development plan. This
includes the appointment of a specific officer to deal with neighbourhood plans and adopting
swift delegated procedures to ensure neighbourhood plans are brought into operation as
quickly as possible. We certainly would not wish to see all the hard work that is going into
neighbourhood plans by the local community groups come to a standstill as a consequence
of this judgement.

The judgement does however mean that each application has to be considered under the
presumption in favour applied by paragraph 14 of the NPPF where there is no 5 year supply
of housing land. In other words to weigh the benefits of building more houses against any
adverse impacts. In doing so a judgement would need to be made on what weight should be
given in the planning balance to any conflict or support for policies in the neighbourhood
plan and this will vary depending on the particular circumstances of the development, the
neighbourhood plan policies and the degree of conflict or support with policies in the
neighbourhood plan. Each application will be considered on a case by case basis and there
will not be a blanket approval of housing applications where neighbourhood plans are in
place or at an advance stage.

As a result of the Woodcock judgement it is not as simple as making a statement that a
development is in conflict with the neighbourhood plan. Consideration of applications needs
to go further than that and show that there would be significant and demonstrable harm that
would outweigh any benefits based on the content of the NPPF and relevant planning
policies (Paragraph 14 of the NPPF). This is precisely what the advice given to district
councillors on Friday 31st July said.

The Council is certainly not scrapping or abandoning Neighbourhood Plans but the
Woodcock judgement means their housing supply policies have less weight behind them
than many communities may have previously assumed. Importantly any non housing
policies such as those on protecting green spaces, affordable housing, design, heritage,
landscape, community facilities or protection of wildlife habitat remain unaffected by the
judgement and all apply with full weight where they are in a made neighbourhood plan. Our
view is that communities should continue to work on the preparation of neighbourhood plans
so that the Council has those policies available to utilise in its planning decisions.
In effect neighbourhood plans are now in the same position as the Council's own planning
policies have been in for some time. Despite this we have successfully defended appeals
against refusal of planning permission for housing. Where we believe that there are strong
justifiable reasons to refuse planning permission we will continue to do so and defend those
decisions at appeal.

Apologies for the length of this briefing note but for all of those involved in local planning
matters you will understand it is a complex and constantly evolving picture that we obviously
need to ensure we are applying appropriately as we determine applications and progress
local and neighbourhood plans.

We are scheduled to have a planning seminar on the evening of the 17th September with all
town and parish councils and it is proposed that neighbourhood plans is one of the key items
on the agenda. Invitations will be sent out in due course.

AVDC
4th August 2015