Lochailort Investments Ltd, R (On the Application Of) v Mendip District Council

A neighbourhood development plan must normally observe national planning policy. A departure may be lawful, but it requires a clear and reasoned justification.

The National Planning Policy Framework requires policies managing development in Local Green Spaces to be substantially consistent with Green Belt development policy. A policy which permits development only where it enhances the space’s original use and the reasons for designation is materially more restrictive than Green Belt policy. In the absence of reasons justifying that departure, it fails the basic conditions for a neighbourhood plan.

Local Green Space need only be capable of enduring beyond the plan period. That is a lower standard than Green Belt permanence. A misinterpretation of a strategic policy invalidates a planning decision only where it materially affected the decision.

Lochailort Investments Ltd, a developer owning land including two of ten areas designated as Local Green Spaces in the Norton St Philip Neighbourhood Plan, sought judicial review of Mendip District Council’s decision to approve the plan for referendum.

The challenge concerned Policy 5, which allowed development on Local Green Spaces only where it enhanced their original use and the reasons for designation. Lochailort also contended that the spaces had not been assessed for their ability to endure beyond the plan period, and that the plan was not in general conformity with strategic housing policies.

Lang J dismissed the claim in the Planning Court: [2020] EWHC 1146 (Admin). The central issue on appeal was whether the Local Green Space designations and the policy managing development within them met the basic conditions for a neighbourhood development plan.

1. Appeal allowed on the lawfulness of Policy 5. Paragraph 101 of the National Planning Policy Framework required Local Green Space development-management policies to be consistent with Green Belt policy. “Consistent” meant substantially the same in substance, not necessarily verbatim replication.

   Policy 5 was materially more restrictive. It excluded development which Green Belt policy treats as not inappropriate, including relevant outdoor-sport development and limited affordable housing. It also excluded development justified by very special circumstances, prevented a change of use even where Green Belt policy allowed one, and required enhancement rather than preservation of openness and the designation’s purposes. It could not properly be read as flexible. Although a neighbourhood plan might depart from national policy, the departure required reasoned justification. None had been supplied. Policy 5 therefore failed the basic condition in Schedule 4B paragraph 8(2)(a) of the Town and Country Planning Act 1990.

2. The Local Green Space designations were nevertheless lawful. The requirement that a Local Green Space be capable of enduring beyond the plan period did not require permanence, an inevitable continuation after that period, or the exceptional-circumstances standard applicable to Green Belt designation. The requirement could be met where development pressure could be accommodated elsewhere during the plan period. The experienced independent examiner was entitled to the ordinary presumption that she had understood the relevant policy framework, though that presumption remained rebuttable. On the examiner’s conclusions about housing land, the judge had been entitled to find the criterion met.

3. The strategic-policy ground failed. Interpretation of planning policy is a legal question, while general conformity with strategic policies is a matter of planning judgment. A mistaken interpretation renders a decision unlawful only if it materially affected that decision. The misunderstanding of the housing requirement had no material effect on the plan’s specific proposals.

The court allowed the appeal on the first ground alone.

• Court of Appeal (Civil Division): allowed the appeal on the unlawfulness of Policy 5, while rejecting the challenges to the Local Green Space designations and to general conformity with strategic policies: [2020] EWCA Civ 1259.
• High Court, Planning Court (Lang J): dismissed the judicial-review challenge and held the plan lawful: [2020] EWHC 1146 (Admin).