End of the road for SPD abuse?

The High Court has confirmed the need to tread a common sense path through the mire of the Local Plan Regulations, in quashing a supplementary planning document (SPD) that strayed into Development Plan Document (DPD) territory in William Davis Ltd & Ors v Charnwood Borough Council [2017] EWHC 3006 (Admin) (23 November 2017). SPDs escape the examination process needed for DPDs. They are often seen as simply elaborating on existing policies. The Town and Country Planning (Local Planning) (England) Regulations 2012 are more nuanced: SPDs are allowed to contain policy, but it must be justified and must not conflict with the adopted development plan (Reg 8(3)). Unlike Local Plans, SPD policy cannot supersede development plan policy (and is merely a material consideration). Local Development Documents (LDDs) that have certain characteristics listed in regulation 5 must (under reg 6) be prepared as Local Plans (i.e. DPDs). SPDs are anything that is not a Local Plan (reg 2): i.e. a document containing statements regarding “any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land encouraged by a [Local Plan]”. Confusingly, the Regulations allow for a class of “residual LDDs” which are neither (R (RWE Npower Renewables Ltd) v Milton Keynes Borough Council [2013] EWHC 751 (Admin)). The regime is messy and open to abuse where SPDs stray into Local Plan territory without being examined as a DPD (i.e. identifying development and use of land which the authority wishes to encourage, making site allocations or setting development management and site allocation policies to guide application decisions). In Charnwood, Gilbart J quashed policies in a housing SPD. The core strategy contained strategic policies with high level targets for housing types to meet demographic needs, with a “subject to viability” affordable housing target (and a requirement that types tenures and sizes of homes would be appropriate having regard to identified housing needs and character of the area). The SPD prescribed different percentages for all house sizes, and a 60-70% affordable housing requirement for some unit types. The statements were quashed: they contained policies; and they clearly related to forms of development to be encouraged and imposed development management policies against which applications could be refused (or conditions to control unit mix imposed) (under reg.5). Overlap with the SPD “guidance” category in the Regulations did not negate that (citing R (Skipton Properties Ltd) v Craven District Council [2017] EWHC 534 (Admin)).  They could only be adopted as a Local Plan (DPD), following examination.  The failure to assess viability impacts was also unlawful. The judgment emphasises that defects in the Regulations need to be tackled in light of the “realities of development control” and the fundamental importance of robust and independent examination of the development plan. Roy Pinnock is a partner in the planning and public law team at Dentons