Town and country planning – Neighbourhood development plan – Para 8(2)(e) of Schedule 4B to the Town and Country Planning Act 1990 – Respondent council putting NDP to referendum – Whether NDP failing to comply with “basic condition” of general conformity with strategic policies contained in development plan for the area – Whether such conformity possible where local plan out of date and emerging plan not yet adopted – Whether respondents’ decision on NDP premature – Appeal dismissed“general conformity with the strategic policies contained in the development plan for the area”
In 2015, the respondent district council proceeded to a referendum, under para 12 of Schedule 4B to the Town and Country Planning Act 1990, on a neighbourhood development plan (NDP) for the parish of Newick, a largely rural area surrounding Newick village to the north of Lewes. The referendum paved the way for the formal making of the NDP under section 38A(4) of the Planning and Compulsory Purchase Act 2004. The NDP was prepared by the interested party, which was the parish council for that area.
At the time, the development plan for the area included saved policies from a local plan originally adopted in 2003, which deal with the period from 1991 to 2011 and provided for 4,600 new dwellings in that period. Those policies were to remain effective until the respondents adopted a new local plan setting out a core strategy for the period 2010 to 2030. The emerging local plan provided for a minimum of 100 net additional dwellings in Newick on sites to be identified in a further plan document, but had not yet been adopted at the date of the respondents’ decision on the NDP.
The appellant brought a claim for judicial review of the respondents’ decision. It contended that the respondents had, inter alia, failed to comply with one of the “basic conditions” in para 8(2)(e) of Schedule 4B that an NDP be in “general conformity with the strategic policies contained in the development plan for the area”. It argued that there was no relevant local plan with which the NNP could be in “general conformity”, because the adopted local plan was out of date, and the new core strategy, with which the NDP aimed to conform, was still emerging; accordingly, the making of the NDP was premature.
That and other submissions were rejected in the court below: see [2015] EWHC 2311 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) An NDP could include policies dealing with the use and development of land for housing, including policies dealing with the location of a proposed number of new dwellings, even where there was at the time no development plan document setting out strategic policies for housing: R (on the application of Gladman Developments Ltd) v Aylesbury Vale District Council [2014] EWHC 4323 (Admin), BDW Trading Ltd v Cheshire West and Chester Borough Council [2014] EWHC 1470 (Admin), Woodcock Holdings Ltd v Secretary of State for Communities and Local Government [2015] EWHC 1173 (Admin) and R (on the application of Crownhall Estates Ltd) v Chichester District Council [2016] EWHC 73 (Admin) applied.
The provisions of Part 2 of the 2004 Act envisaged a “local development scheme” comprising “development plan documents”, which would together form the statutory development plan for the local planning authority’s area. An NDP, once made, would be a constituent part of the development plan and the statutory scheme sought to ensure an appropriate degree of consistency between a NDP and the strategy of the extant, statutorily adopted development plan. That was the essential purpose of the “basic condition” in para 8(2)(e) of Schedule 4B to the 1990 Act. Schedule Section 13 of the 1990 Act required local planning authorities to keep their development plan documents under review. If an NDP had been made and the local planning authority later produced a development plan document containing new strategic policies, then that development plan document would, under section 38(5) of the 2004 Act, prevail over any inconsistent policies in the NDP; similarly, if a policy in an NDP was not up to date, then that would be a material consideration in a development control decision, and might justify departing from that policy.
Accordingly, the true sense of the expression “in general conformity with the strategic policies contained in the development plan” was simply that, if there were relevant “strategic policies” contained in the adopted development plan for the area or part of it, the NDP should not be otherwise than in “general conformity” with those strategic policies. Whether there was sufficient conformity to satisfy that requirement would be a matter of fact and planning judgment. However, housing allocations made in an NDP for a plan period that did not coincide, or even overlap, with the period of an adopted local plan could not logically be said to lack “general conformity” with the strategic housing policies of that local plan for that local plan period. In those circumstances, the two plans would be dealing with the provision of housing in wholly different periods.
Paragraph 8(2)(e) did not require the making of an NDP to await the adoption of any other development plan document. It did not prevent an NDP from addressing housing needs unless or until there was an adopted development plan document in place setting a housing requirement for a period coinciding, wholly or partly, with the period of the NDP. An NDP could include policies allocating land for particular purposes, including housing development, even when there were no strategic policies in the statutorily adopted development plan to which such policies in the NDP could sensibly relate, either because there were no relevant strategic policies at all or because the relevant strategy itself was now effectively redundant, its period having expired. The NDP might also conform with the strategy of an emerging local plan. It might anticipate the strategy for housing development in that emerging plan and still not lack “general conformity” with the strategic policies of the existing development plan. That understanding of para 8(2)(e) was consistent with national policy and guidance in the NPPF and the PPG.
(2) Rejecting further grounds of challenge advanced by the appellant, the court also held that the respondents had not failed to: (i) discharge the requirements of article 6(3) of Directive 92/43/EEC (the Habitats Directive) and regulation 102 of the Conservation of Habitats and Species Regulations 2010 (the Habitats Regulations); (ii) have regard to relevant national policy and guidance for the delivery of new housing in National Planning Policy Framework (NPPF) and the Planning Practice Guidance (PPG); (iii) comply with regulations 5(6) and 9 of the Environmental Assessment of Plans and Programmes Regulations 2004 (the SEA Regulations; and (iv) comply with the requirement in para 7(6) of Schedule 4B to the 1990 Act that the examiner of an NDP should be “independent”.
Christopher Young and James Corbet Burcher (instructed by Irwin Mitchell LLP) appeared for the appellant; Clare Parry (instructed by Sharpe Pritchard) appeared for the respondents; the interested party did not appear and was not represented.
Sally Dobson, barrister
Click here to read transcript: R (on the application of DLA Delivery Ltd) v Lewes District Council
