To lose three key cases in a week is something of a misfortune for Gladman.
At Blaby on the first special measures appeal the inspector backed the Liverpool approach in a recently adopted local plan.
Secondly at Winslow they have lost a JR to block a neighbourhood plan on the basis that the draft local plan which defines the need the neighbourhood plan does not assess the full objectively assessed need (OAN).
Finally in Wokingham (Gladman Developments Limited v Wokingham Borough Council. Case No: CO/1455/2014) they failed to get an allocations plan overturned on the basis the core strategy OAN was out of date.
On Liverpool V Sedgefield it is clear now that although at S78 appeals inspectors generally favour Sedgefield, the courts have upheld the ability of inspectors to go with Liverpool, as guidance does not hard and fast specify Sedgefield and sometimes it is impractical. This is especially the case where there is a recently adopted plan based on a large scale strategic allocation that will take a number of years to gear up.
On neighborhood plans it is now very clear from caselaw and guidance that neighbourhood plans can allocate plans even in advance of a local plan and where a local plan is in the works but its OAN assessment has been found wanting. The clear logic of the courts is that it is better to have some allocations than none at all.
However that does not mean that a neighbourhood plan cannot be out of date the day it is agreed. Lack of OAN can be another material consideration, and after Hunstan and final guidance paragraph 2a-004 it is clear that the inspector will start with assessing full OAN in a policy and constraints off position before then moving on to other policy issues.
There does however appear to be two schools of though in the planning inspectorate, both sadly backed up in inconsistent SoS decisions.
The first (minority) position was expressed in the famous Feniton cojoined appeals- as if Hunston did not exist!
‘It is not for me, in the context of determining whether specific development proposals should be permitted, to usurp that function of the EiP by forming a view as to whether the housing requirement figure set out in the eLP will meet the objectively assessed housing need for the district: I have neither the remit nor the evidence. I do however need to determine whether the Council is able currently to demonstrate a five year supply of housing land, as required by paragraph 49 of the NPPF.’
But this is not the majority position. Rather this is that on appeal in s78s, even if a LPA has adopted CS and allocation plans, the Hunston judgement means that a needs assessment will have to be carried out by the Inspector. And if the CS is out of date (e.g. it relies on old RS figures) then a recently adopted allocation plan will not protect the LPA from the NPPF’s para 14. presumption clause.
Events in East Cheshire have brought this to a head where on 5 appeals 5 inspectors have produced 5 different OAN figures,
The SoS has written to an inspector in a sixth case asking they especial attention” to Cheshire East’s five-year housing land supply and to give a “considered view”. So now a S78 appeal becomes a surrogate EiP.
So it is clear that even if you have a one day old Neighbourhood Plan this wont protect you if the OAN figure is not supported. Hence developers more and more will get into the game of trying to manipulate numbers in the best light, which used to be the preserve of LPAs only.
As East Cheshire shows this is hardly a satisfactory situation. Neither LPAs or developers are that objective, and S78 appeals are a wasteful and duplicitous means of determining OAN. Bring back the NHPAU I say as the main arbiter for OAN, leaving inspectors to determine whether any policy grounds overule that. Otherwise, as we have found, we are all making it up as we go aalong based on an ever longer and acreting body of case work, guidance and precedents.