Decision Here – very important decision. Charles Mynors is of course a noitable planning lawyer/academic.
In this case, one of those making a response to the consultation on the draft Winsford Plan has raised, as a preliminary legal point, the issues of
the relative timing of the making of a neighbourhood plan and the adoption of a local plan, and whether the requirement for a neighbourhood plan to be the subject of a
strategic environmental assessment (SEA) can be met by such an assessment having been prepared in the context of an emerging local plan.
It would seem to be meaningless to refer to a neighbourhood plan being made “before” a local plan, as long as there is in place a local plan – of whatever age. However, if the relevant local plan is some way in the past, and if there is within that plan no saved policy that allocates a specific amount of housing to be provided, it is then at least arguable that it would be unlawful to make a neighbourhood plan, or that it would be unlawful if that plan were to contain any housing allocations; and that might have implications on other policies.
Normally such issues would be dealt with by an independent examiner within the overall assessment of whether a plan meets the basic conditions and requirements. The whole ethos of neighbourhood planning is to discourage elaborate hearings, particularly with legal submissions (see TCPA 1990, Schedule 4B, paragraph 9(1)). However, it would be wrong, even if it were possible, to prevent such submissions from being made where relevant. The availability of legal representation for any party at a hearing would not necessarily be a relevant factor; although clearly it is necessary for any hearing to be conducted in accordance with the rules of natural justice.
However, in this case, there is pending litigation in the High Court (BDW Trading Ltd (trading as Barratt Homes) and others v Cheshire West and Chester Council and
another) that is likely lead to a resolution of these issues in the very near future. The hearing of that litigation is expected to take place on 24-25 March 2014.
6. That is a wholly exceptional factor. Since these issues have been raised, it seems artificial to proceed with the examination of the Winsford Neighbourhood Plan when
the outcome of such litigation is imminent. And once that outcome is known, it is likely that there will then be a clear statement as to the legal basis on which to consider:
whether it is appropriate to consider making the Winsford Neighbourhood Plan at this time, and
if so, how the need for housing land is to be calculated and the need for SEA assessed.
The fact that, by chance, the pending High Court litigation involves the same local planning authority is not relevant.