Common Sense Needed to Flush Out 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).

Light Touch

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)). SPD policy cannot supersede development plan policy and is merely a material consideration.

Substance Over Style

Local Development Documents (LDDs) that have the characteristics listed in regulation 5 must (under reg 6) be prepared as Local Plans (i.e. DPDs). SPDs are defined negatively (reg 2) as anything that is not a Local Plan. In practice, this means 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]".

The regime is messy and open to abuse where SPDs stray into Local Plan territory. SPDs cannot contain policy identifying development and use of land which the authority wishes to encourage, making site allocations or site allocation policies or setting development management to guide application decisions.

No Mercy

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). Although there was some legitimate SPD 'guidance' that did not save the offending policies (citing R (Skipton Properties Ltd) v Craven District Council...