One of the most common questions that used to come up in drafting core strategies under the previous government was ‘is there a [arish veto’ i.e. if a Parish said no to any housing could an LPA accept that as reason enough.
The answer clearly was no. PPS3 and PPS12 required plans to be made according to a defensible strategy led by the evidence, and opposition to development alone, as we all know, is not a material planning consideration by itself.
With the shift to localism and the proposed NPPF what would the answer be now? Clearly Neighbourhood Plans must take any housing requirements set out for their area to comply with the merging NPPF and the localism bill conformity test. However is it acceptable to, as some LPAs appear to be attempting, draft a ‘local plan’ to be 100% ‘bottom up’, with a neighbourhood only being allocated what it wants?
After giving this some careful thought I dont think it can, for the following reasons.
Firstly a local plan will still need under the NPPF to have a coherent strategy that is justified by the evidence.
This leads onto the second point, if the evidence points to an area having planning advantages, but there is limited or no development due to local opposition, but a similar site elsewhere is then this shows a lack of natural justice to the land owner and a breach of a due process evidence and strategy led approach to plan making as indicated by parlimaent and in national policy.
There is a strong parallel here with the multiple legal challenges in the US judging ‘spot zoning’ and ‘reverse spot zoning’ unlawful. What relevance does the US have you might ask. Well both us and the US share the same base of Common Law, as the number of US supreme court references to Blackstone illustrates, and now similar Bills of Rights. Indeed the references in the states are to the ‘Common Law of Zoning’.
Some definitions – Spot Zoning – the application of zoning to a specific parcel of land within a larger zoned area when the rezoning is usually at odds with a wider plan for the area.
Reverse Spot Zoning – when a zoning ordinance prevents a property owner from utilizing his or her property in a certain way, when virtually all of the adjoining neighbors are not subject to such a restriction, creating, in effect, a veritable zoning island.
Both of these have been judged to be unlawful in the States and my hunch is that similar arguments could be successfully applied in the UK if a ‘Parish Veto’, or Neighbour Plan Allocated at odds with a local plan – were to occur.
Landmark us cases include De Groot v. Sheffield , 95 So.2d 912 (Fla.1957) the action of the local governmental body needs to be supported by substantial, competent evidence.
In many parts of the US courts have found spot zoning illegal on the ground that it is incompatible with the existing land use-zoning plan or in an overall zoning scheme for the community. Whether the exception carved out is reasonable and supported by the facts, often turns on public interest, the effect the spot zoning has on the current uses of neighboring properties, and any ramifications created by the zoning.
A zoning amendment that favors a particular landowner over nearby landowners has been seen seen as arbitrary and discriminatory unless there is substantial evidence of change in the neighborhood justifying rezoning a small tract in keeping with the comprehensive plan.
McKenzie v. Shelly, 77 Nev. 237, 243, 362 P.2d 268 (1961). No. 6. “The test of [lawful] spot zoning is whether the amendment was made with the purpose of furthering a comprehensive zoning scheme or whether it was designed merely to relieve the land of a restriction which was particularly harsh upon that particular land.”
The same tests apply to inverse spot zoning. So restricting one site because of a parish veto, over another similar not subject to that veto would fail the ‘comprehensive zoning scheme’ test. This has been found to be unconstitutional.
Barrett v. Hamby, 235 Ga. 262 (219 SE2d 399) (1976)
provides the test for determining whether the application of a local zoning ordinance to a given piece of property constitutes an unconstitutional taking of the property without just compensation.
As stated in Barrett v. Hamby: “As the individual’s right to the unfettered use of his property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality or general welfare. Lacking such justification, the zoning may be set aside as arbitrary or unreasonable
. Nectow v. Cambridge, 277 U. S. 183, 188 (1928); City of Thomson v. Davis [92 Ga. App. 216
“As these critical interests are balanced, if the zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner, such regulation is confiscatory and void. City of Jackson v. Bridges, 243 Miss. 646 (139 S2d 660); Weitling v. DuPage County, 26 Ill. 2d 196 (186 NE2d 291)
The application of the Barrett v. Hamby test was embellished upon in Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322
, 323 (232 SE2d 830
) (1977): “ ‘A zoning ordinance is presumptively valid, and this presumption may be overcome only by clear and convincing evidence. The burden is on the plaintiffs. The validity of each zoning ordinance must be determined on the facts applicable to the particular case, but certain general lines of inquiry have been regarded as relevant, to wit: (1) existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of the plaintiffs promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public, as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the area in the vicinity of the property
.’ La Salle National Bank v. County of Cook, 60 Ill. App. 2d 39, 51 (208 NE2d 430) (1965).”
Now of course UK courts might take a different view, this is entirely untested ground. however the general principles over arbitrary planning, unsupported by planning or a comprehensive strategy apply. A bottom up emphasis is welcome, but glueing together incompatible plans on different assumptions does not a comprehensive plan make.