In R (DLA Delivery Ltd) v Lewes District Council [2017] EWCA Civ 58, the Court of Appeal has confirmed that the process for adopting a neighbourhood development plan (NDP) is as simple as stated under Schedule 4B to the Town and Country Planning Act 1990. That means few NDPs will survive contact with reality.
The NDP promoted by Lewes District Council identified four housing sites. The examiner concluded it was “in general conformity with the strategic policies of the development plan for the area”, and so met the Schedule 4B “basic conditions” (to allow it to proceed to a referendum). The claimant challenged the referendum process, under section 38A(4) of the Planning and Compulsory Purchase Act 2004. It argued that:
(1) It was not possible for the NDP to be in “general conformity” with development plan “strategic policies” that were themselves out of date or missing. The NDP was designed to be in conformity with the emerging local plan (ELP), which had yet to pass examination. Rejecting both criticisms, the court confirmed that an NDP does not have to wait in line until the strategic plan is in place. The requirement for general compliance is in relation to “relevant” strategic policies, not those relating to “wholly different [plan] periods” or that have become “effectively redundant”. Designing for conformity with emerging policies is acceptable in those circumstances.
(2) The authority breached the requirements for ‘appropriate assessment’ under the Conservation of Habitats and Species Regulations 2010 (“the Habitats regulations”). The ELP evidence base recognised that appropriate assessment would be required and new housing development in the NDP area would require SANG mitigation (to be identified in detailed allocations). The NDP policies were amended at examination to reflect this reliance. Rejecting the claim, the court noted that the NDP simply relied on SANG provision via the local plan process (rather than making its own allocations). While uncertainty about timing of SANG delivery could be fatal to a planning application, in the local plan context “plans for the provision of SANG in the future (even those with uncertainties attached) may be sufficient to comply with the Habitats regulations”. The examiner’s failure to explain why he accepted that SANG delivery was likely was unlawful (No Adastral New Town Ltd v Suffolk Coastal District Council [2015] EWCA Civ 88 applied), but not enough to justify quashing the NDP given that provision had come forward in the meantime (Walton v Scottish Ministers [2012] UKSC 44 applied).
The judgment acknowledges that NDP policies adopted “early” in this way will subside beneath later local plan policies (or up to date evidence of need). The longevity of neighbourhood plans – and the effort put into them – would benefit from a more coherent examination regime.
Roy Pinnock is a partner in the planning and public law team at Dentons
