John Rhodes Flawed Replacement Test for Local Plans and a much better one – Updated

The Planner

Rhodes echoed the recommendations of the LPEG inquiry with a variety of ways in which to make plan-making more efficient and effective and to restore the integrity of the plan-led system, including:

  • Make it a statutory duty to create a post-NPPF local plan. “If you don’t produce a plan your existing [pre-NPPF] plan will dissolve and others will come in and write your plan for you.”
  • Streamline the process of assessing objectively assessed need (OAN) for housing. “There must be a simpler way of doing this. Why don’t you just have a formula that that tells you how to work out your OAN at the touch of a button?”
  • Reduce environmental impact assessments to a short “assessment of environmental capacity” and a statement of how environmental considerations have been incorporated into the plan
  • Enforce the duty to co-operate. “The duty to cooperate is useless. A duty to chat is what most people called it [during the LPEG inquiry]. It’s not being properly enforced.”
  • Limit policy change and alterations to the National Planning Practice Guidance (NPPG), to let the NPPF properly establish itself. “Could we have less change please and simply more application of policy and stop fiddling with the NPPG? It’s not there for politicians, it’s there for us lot as practical guidance on policy.”
  • Ease the soundness test by altering the phrase “most appropriate strategy” in paragraph 182 of the NPPG to “an appropriate strategy” to allow for greater flexiblity in approving plans and greater speed in plan-making.
  • Impose a statutory schedule on creating a local plan, which Rhodes suggested should be two years.

“You can’t expect the NPPF to be successful if it’s not fully reflected in local plans,” Rhodes stressed. “Imagine a world in which we had a full suite of local plans consistent with the NPPF planning to meet housing needs. You could not make a more serious statement about the intention to meet housing needs. That’s the way the national crisis would be addressed.”

That test would not work.  Consider a case where a plan imposed all its housing on one settlement or site and objectors wanted it elsewhere.  Irrelevant to his proposed new test.  The inspector could not even hear objections.  There is a multitodious potential appropriate plans – is it some kind of floor standard, if so how is it measured?

Also would contravene the SEA directive (which would be placed into English Law by the proposed Great Reform Bill) with its requirement to consider reasonable alternatives.  Even if the SEA recommended an alternative strategy an inspector could not hear it.

Updated 

I should have added the tests from  R. (Stonegate Homes Limited and another) v. Horsham District Council and Henfield Parish Council [2016] EWHC 2512 (Admin)

  1. It is incumbent upon the makers of the plan, the Independent Examiner and the making authority when certifying in its opinion that the plan was compliant with EU law to employ reasoning that is sound in the public law (Wednesbury) sense.
  2. The maker of the plan is obliged to undertake an objective assessment of the policies of the plan when discharging the above duty.
  3. That alternatives need to be accurately presented in order for the SA/SEA of a plan to comply with European law.
  4. All key policies of the plan need to be assessed against reasonable alternatives to have a EU law compliant SA/SEA.

A better test reflecting the law.

‘The most appropriate strategy having considered reasonable alternatives’ 

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