No5 Barristers successful in persuading Neighbourhood Plan Examiner to refuse Local Green Space designation

Thu, 06 Nov 2014

Christopher Young and James Corbet Burcher have successfully advised and represented Persimmon Homes Severn Valley at the Backwell Neighbourhood Plan Examination, conducted by Examiner Nigel McGurk BSc (Hons) MCD MBA MRTPI.

Farleigh Fields measures 19 hectares, and is located just outside the Bristol Green Belt. The majority of the site is owned by the company and is proposed for a residential scheme with substantial public open space. The Parish Council sought to designate the full 19 hectares as Local Green Space through the Draft Neighbourhood Plan, plus Moor Lane Fields, an additional 32 hectare site.

Persimmon’s instructed planning consultants, Turley Associates, took strategic advice from Christopher Young in respect of the site and the need for legal representation at the Neighbourhood Plan hearing. James Corbet Burcher then appeared at the Examination hearing on 25 September 2014 before the Examiner alongside Persimmon’s local Strategic Land Director, to make submissions on the correct policy interpretation of the NPPF, the specific features of the site and Persimmon’s proposals for the site.

Paragraphs 76 to 78 NPPF set out national policy on Local Green Space:

“76. Local communities through local and neighbourhood plans should be able to identify for special protection green areas of particular importance to them. By designating land as Local Green Space local communities will be able to rule out new development other than in very special circumstances. Identifying land as Local Green Space should therefore be consistent with the local planning of sustainable development and complement investment in sufficient homes, jobs and other essential services. Local Green Spaces should only be designated when a plan is prepared or reviewed, and be capable of enduring beyond the end of the plan period.
77. The Local Green Space designation will not be appropriate for most green areas or open space. The designation should only be used:

- where the green space is in reasonably close proximity to the community it serves;
- where the green area is demonstrably special to a local community and holds a particular local significance, for example because of its beauty, historic significance, recreational value (including as a playing field), tranquillity or richness of its wildlife; and
- where the green area concerned is local in character and is not an extensive tract of land.

78. Local policy for managing development within a Local Green Space should be consistent with policy for Green Belts.”

In his Report of 29 October 2014, Mr McGurk began by observing that Local Green Space is a “restrictive and significant policy designation” equivalent to Green Belt designation. He held that “it is essential that, when allocating Local Green Space, plan-makers can clearly demonstrate that the requirements for its allocation are met in full.”

The Examiner found that “the most striking thing about Farleigh Fields and Moor Lane Fields is their substantial size”. He rejected a submission by the Parish Council that a distinction might apply in respect of rural or semi-rural areas, as no such distinction appeared in the Framework. The Examiner continued:

“In the case of Farleigh Fields, it is my view that 19 hectares also comprises an extensive tract of land. To provide some perspective, at least twenty three full size football pitches would easily fit in to an area of this size. 
Given that the Framework is not ambiguous in stating that a Local Green Space designation is not appropriate for most green areas or open space, it is entirely reasonable to expect compelling evidence to demonstrate that any such allocation meets national policy requirements. Specific to demonstrating that Farleigh Fields, and Moor Lane Fields are not extensive tracts of land, no substantive or compelling evidence has been presented.”

The Examiner therefore found that the direct conflict with national policy meant that the Local Green Space Policies in the Neighbourhood Plan did not meet the basic conditions under paragraph 8(2) of Schedule 4B and that national policy did not permit a failure to meet policy requirements to be balanced against other considerations when designating LGS.

The Examiner therefore proposed deletion of these Policies with the addition of wording to encourage further working between the Parish Council and District Council “to establish how recognition of their valuable features may, in future, be incorporated into the development plan.” and re-wording Community Action for the Parish Council to “seek to promote the allocation of appropriate areas of Local Green Space in the development plan”.

The Examiner’s Report is an important indication of the threshold that faces a qualifying body in respect of Local Green Space, and the growing recognition of the importance of robust and compelling evidence in neighbourhood plan-making.

Chris Young and James Corbet Burcher have now worked together on behalf of house builders and development promoters in respect of four neighbourhood plans at various stages of preparation. Separately, they have worked on over eight further neighbourhood plans: at examination, at all stages of Schedule 4B TCPA decision-making up to referendum, at section 78 appeals, and also in respect of section 288 appeals and judicial review of decisions to send neighbourhood plans to referendum and “make” neighbourhood plans.

Work in the neighbourhood plan sphere forms a natural adjunct to their existing practices in the residential development sector, in conventional appeal inquiry work and local plan examinations, with a strong public/administrative law dimension in what is a new and fast-moving area.

Please click here to view Chris Young and James Corbet Burcher's profiles.

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