Larkfleet Homes Ltd, R (on the application of) v Rutland County Council & Ors

Regulations made under section 17 of the Planning and Compulsory Purchase Act 2004 govern local development documents prepared by local planning authorities. They do not restrict the separate statutory regime for neighbourhood development plans. A neighbourhood development plan may therefore contain site allocation policies where neither the Act nor regulations made specifically for such plans impose a restriction.

An environmental-assessment screening report must address likely significant positive as well as negative effects. It must, however, be read as a whole and with appropriate benevolence. Defective language in parts of the report will not invalidate the decision if its overall content shows that both types of effect were considered.

Larkfleet, a housebuilder with an interest in land at Uppingham, sought judicial review of Rutland County Council’s decision to proceed to a referendum on the Uppingham Neighbourhood Plan. The plan allocated three housing sites, while the Council’s separate site-allocation development plan document made no allocations for Uppingham.

Collins J dismissed the claim: [2014] EWHC 4095 (Admin). Larkfleet appealed on two grounds. It contended that site allocation policies could appear only in local development documents under section 17 of the Planning and Compulsory Purchase Act 2004, and that the Council’s screening decision unlawfully failed to consider significant positive environmental effects when deciding that no strategic environmental assessment was required.

Appeal dismissed. Richards LJ gave the judgment, with which Sharp and Moore-Bick LJJ agreed.

1. Section 17 of the Planning and Compulsory Purchase Act 2004 concerns the local development documents and planning-policy functions of local planning authorities. Regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012 must be read in that setting. Although regulation 5(2) does not repeat the words “local planning authority”, it too concerns documents prepared, or to be prepared, by such an authority.

2. Neighbourhood development plans are governed by a separate regime in sections 38A to 38C. They are proposed by qualifying bodies and made by the authority after the statutory process. Section 38 distinguishes neighbourhood development plans from development plan documents. Sections 38A and 38B are wide enough to permit site allocation policies, and neither the exclusions nor the regulations made under section 38B impose a material restriction. The contrary construction would improperly cut down that express regime by regulations directed to a different subject matter.

3. The parties accepted that assessment of likely significant environmental effects for strategic-environmental-assessment screening includes positive and negative effects. The court therefore confined the second ground to whether the author of the screening report had in fact considered both.

4. The report was poorly expressed in places and repeatedly referred to negative effects. Read as a whole, however, it considered the earlier sustainability appraisals, compared each neighbourhood-plan policy with the strategic documents, and included an example of a positive effect found not significant. The judge was entitled to conclude that the screening exercise had addressed positive as well as negative effects. Documents of this kind are to be read as a whole and with a degree of benevolence; that approach did not exceed permissible limits here.

• Court of Appeal (Civil Division): dismissed Larkfleet’s appeal and upheld the decision to proceed to referendum: [2015] EWCA Civ 597.
• High Court, Planning Court: Collins J dismissed Larkfleet’s judicial-review claim challenging the referendum decision: [2014] EWHC 4095 (Admin).