Key to the recent determination of the application to build up to 75 new homes on open farmland to the west of Modbury was an opinion submitted by Sara Reid KC on behalf of the developer Bloor Homes. No attempt was made to take independent legal advice to establish whether that opinion might be open to challenge.

It is of course understandable why officers might wish to avoid the expense. Good legal advice does not come cheap. But that does not mean that Ms Reid’s opinion should simply have been accepted, particularly as it may not necessarily have been entirely correct.

To illustrate the point South Hams Society planning lead Les Pengelly asked Microsoft CoPilot to examine the application. Not only did CoPilot conclude the developer’s legal opinion contained “selective interpretations, omissions of relevant policy, and overstatements of the effect of the 5‑year housing land supply position”, but that “these issues materially weaken the conclusions reached.”

For example although Ms Reid’s opinion accepted the application was in conflict with policy MNP1(2) of the Modbury Neighbourhood Plan CoPilot notes she fails to acknowledge “The site also conflicts with strategic policies of the Plymouth and South West Devon Joint Local Plan (‘JLP’), including: TTV1 (hierarchy of settlements), TTV2 (sustainable settlements) and TTV26 (development in the countryside). These are strategic policies", CoPilot continued, "not neighbourhood policies. They remain part of the statutory development plan and carry significant weight, even where the tilted balance applies”.

And her opinion went on to argue the titled balance should apply as the Local Planning Authority could only demonstrate a 2.53-year housing land supply, and not the 5 years required. As a consequence any “restrictive policies should be given ‘very limited weight’ because they constrain housing delivery.”

However, argues CoPilot, “this is a misstatement of the law. The Supreme Court in Hopkins Homes held that: Policies do not lose weight automatically; Weight is a matter of planning judgment for the decision‑maker” and “Environmental and spatial policies may still carry significant weight”, while “The tilted balance does not override: settlement boundaries; landscape protection; infrastructure constraints” or “strategic spatial strategy”, meaning “The Developer’s opinion overstates the effect of the 5YHLS shortfall and understates the LPA’s discretion”.

In addition “The Developer’s KC argues that NPPF14(b) is not met because: ‘The MNP does not contain allocations to meet its… housing requirement,” as required by paragraph 14(b) of the NPPF. This”, suggests CoPilot, “is the central weakness of the opinion”, as “The NPPF allows a neighbourhood plan’s housing requirement to be: set by the strategic plan, or derived through the process described in NPPF69–70. Modbury is a Smaller Town in the JLP hierarchy. The JLP allocated sites for Modbury and did not require the MNP to allocate additional land”, and as “The MNP contains: settlement boundaries; policies governing delivery of the JLP allocations;” and “development management criteria” these can be considered “policies and allocations for the purposes of NPPF14(b).”

To justify her claim “that allocations in a local plan cannot satisfy NPPF14(b)” Ms Reid quotes paragraph 097 of the Planning Practice Guidance which states “Policies and allocations within other development plan documents… will not meet criterion 14(b).”

But, argues CoPilot, “the PPG must be read in context: It is aimed at neighbourhood plans that choose to allocate sites. It does not state that neighbourhood plans relying on strategic allocations are excluded from NPPF14”, and “It does not override the NPPF’s recognition of strategic‑led housing requirements.” In other words “The Developer’s interpretation is not the only reasonable reading and is open to challenge.”

As for the claim by the KC that “I struggle to see how the LPA could reasonably maintain… that MNP1 should be accorded more than very limited weight”, CoPilot points out “This is advocacy, not law,” and that “The LPA is entitled to give significant weight to MNP1 because: It is recently made (2023); It is in general conformity with strategic policies; It reflects community‑led spatial planning;” and “It implements the JLP’s spatial strategy.” Simply “The opinion does not address the purpose of neighbourhood planning, which NPPF14 is designed to protect.”

Yet according to the KC even if NPPF14 were to apply, “it would not matter because it does not ‘mandate refusal’." CoPilot accepts “This is technically correct but misleading” as “NPPF14 creates a strong policy expectation that conflict with a recently‑made neighbourhood plan will ‘likely’ outweigh benefits.” Consequently “The opinion attempts to drain NPPF14 of meaning by treating ‘likely’ as trivial. That”, according to CoPilot, “is not consistent with the purpose of the policy.”

Finally CoPilot notes “The Developer’s opinion concludes that the LPA ‘cannot reasonably’ refuse permission”, but “This is an overreach. The LPA is entitled to conclude that: the spatial strategy is undermined; the settlement boundary is breached; landscape and infrastructure impacts are significant; the proposal is not plan‑led; and the harms outweigh the benefits.”

In addition, states CoPilot, “The tilted balance does not require approval. It requires a judgment”, meaning “The LPA is fully entitled to reach a different judgment from the Developer’s KC”.

In other words, CoPilot concludes, “The Developer’s interpretation of NPPF14(b) is contestable. The opinion fails to address conflict with strategic policies. The weight to be given to MNP1 is a matter for the LPA, not the Developer. The 5YHLS shortfall does not override the development plan. The LPA is entitled to conclude that the harms significantly and demonstrably outweigh the benefits”.

Quite simply “The Developer’s opinion is a piece of paid advocacy, not a neutral assessment. It should be treated as such.”

Of course, like any AI, CoPilot could hallucinate and its arguments might not stand up to expert legal examination were a judicial review to be undertaken. But, given the impact on Modbury and its residents, it does raise the question as to whether planners were wise to simply accept the views of the developer’s own advocate.