here - Cornerstone Barristers

Robin Green
Part 6 of the Planning and Compulsory Purchase Act 2004 requires
local planning authorities to prepare local development plans.
A local development plan
 must set out:
(a) the authority’s objectives in relation to the development and
use of land in its area and
(b) the general policies for the implementation of those
must be prepared “having regard to”
(a) current national policies (Planning Policy Wales; Minerals Planning Policy
Wales; TANs; MTANs; Circulars; Circular letters; MIPPS; MIMPPS)
(b) the Wales Spatial Plan (now the 2008 Update)
(c) the Regional Spatial Strategy for any region which adjoins the area of the
(d) any relevant community strategy
(e) the resources likely to be available for implementing the plan
(f) other prescribed matters (local transport plan policies affecting the authority’s
area; the objectives of preventing, and limiting the consequences of, major
accidents; the long terms need to maintain appropriate distances between certain
sensitive uses; the Waste Strategy for Wales; regional waste plan policies
affecting the authority’s area; local housing strategy policies affecting the
authority’s area)
(In Associated British Ports v Hampshire County Council & Others [2009]
JPL 430 held (following earlier authority) that in the context of plan
preparation the obligation to “have regard to” meant not to depart from
without good reason)
must be prepared with the objective of contributing to the achievement of
sustainable development (and for this purpose must have particular regard to
the desirability of achieving good design)
must be subject to a sustainability appraisal (which should include an
environmental assessment in accordance with the SEA Regulations 2004)
must be prepared in accordance with a delivery agreement comprising the
authority’s community involvement scheme and the timetable for the
preparation and adoption of the LDP
must be submitted to the Assembly for independent examination, but only
when the requirements of the Town and Country Planning (Local
Development Plan) (Wales) Regulations 2005 have been complied with and
the authority thinks the plan is ready for independent examination
must adopt the LDP in accordance with the recommendations of the person
appointed to carry out the independent examination, within 8 weeks of receipt
of the recommendations (unless otherwise agreed in writing by the
Assembly), or may withdraw it if so recommended
The purpose of the independent examination is to determine
whether an LDP
 satisfies the relevant requirements of the 2004 Act and the 2005
 is sound
The 2004 Act does not prescribe what is meant by “sound”, nor do
the 2005 Regulations assist. The Planning Inspectorate has
suggested that its ordinary meaning of ‘showing good judgment’
and ‘able to be trusted’ is apt, within the context of fulfilling the
expectations of legislation.
Local Development Plans Wales (WAG 2005) sets out 10 criteria for assessing
soundness (para 4.35), but six of these criteria duplicate statutory requirements.
The four remaining criteria are:
(1) The plan sets out a coherent strategy from which its policies and allocations
logically flow and, where cross boundary issues are relevant, it is
compatible with the development plans prepared by neighbouring
(2) The strategy, policies and allocations are realistic and appropriate having
considered the relevant alternatives and are founded on a robust evidence
(3) There are clear mechanisms for implementation and monitoring.
(4) It is reasonably flexible to enable it to deal with changing circumstances.
Presumption of soundness: LDP Wales, Local Development Plan Manual (WAG
2006) and A Guide to the Examination of Local Development Plans (PINS
Wales) all say:
“The presumption will be that the LDP is sound unless it is shown to be
otherwise as a result of evidence considered throughout the examination.”
But in Blyth Valley BC v Persimmon Homes (North East) Ltd and others [2009]
JPL 335, CA (similar policy statement in PPS12 in England) conceded that role
of Inspector at independent examination is at least in part inquisitorial; inspector
could reject a policy without there being evidence from objectors that it was
unsound. Held: no presumption of soundness.
Blyth Valley also pertinent where local planning authority faced
with change in national policy shortly before independent
examination. In that case
 New national housing policy issued 2 ½ months before an
independent examination into a core strategy
 New policy altered definition of affordable housing and required
an economic viability assessment
 LPA submitted a “Compliance Statement” at the independent
examination to the effect that core strategy housing policy
complied with new national policy
Inspector held core strategy sound
 Court quashed housing policy as unsupported by
economic viability study and based on earlier
definition of affordable housing
 Suggested (para 32) that LPA might instead
have invited Inspector to modify housing policy
to make clear not compliant with new national
policy and merely a holding policy.
Two other cases underline the importance of considering reasonable alternatives
to policy proposals:
 Capel Parish Council v Surrey County Council [2009] EWHC 350 (Admin):
Challenge to planning permissions for an incinerator and to waste
development plan policies on which planning permissions based. Held: in
recommending adoption of waste policies inspectors had applied unlawful
presumption of soundness and had failed to consider properly the LPA’s
selection process. Policies quashed.
 City & District Council of St Albans v SSCLG [2009] EWHC 1280 (Admin):
Regional policies for significant housebuilding around three towns in the
Green Belt. Although need to accommodate economic pressures accepted, the
environmental report produced for the purposes of the SEA Regulations 2004
did not consider alternatives to the proposed policies and it was not inevitable
that development must occur around the three towns. Policies quashed.
PINS Wales has approximately 15 ½ (?) full time employed
inspectors. Appeal work alone will require some 14 full time
inspectors in 2009-10. Up to 7 LDP independent examinations
could start in 2009-10, with a further 11 in 2010-11. “Inspector
resources in Wales, allowing for the fall in appeals, will
therefore not be sufficient to cover all anticipated LDP
examinations”! (PINS Wales Business Plan)
Guidance on LDP examinations to be produced in 2009-10
PINS Newsletter Issue 13 – Evidence Base Good Practice

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