Case Note: The Court of Appeal clears Newick Neighbourhood Plan in a wide-ranging judgmentThe Queen (on the application of DLA Delivery Ltd) v Lewes District Council  EWCA Civ 58, 10 February 2016
This appeal concerned the process by which a Neighbourhood Plan had been prepared for the parish of Newick in East Sussex (‘NNP’). The claimant, DLA Delivery Ltd., challenged the decision of Lewes District Council to allow the NNP to proceed to a referendum. The claim for judicial review was dismissed by Foskett J. on 31 July 2015. The appeal proceeded on five grounds and covered many legal issues (only some of which can be addressed here). The lead judgment was given by Lord Justice Lindblom, with whom Lord Justice Lewison agreed.
The claimant’s first ground relied on paragraph 8(2) of Schedule 4B of the 1990 Act, which provides: “(2) A draft order meets the basic conditions if – … (e) the making of the order is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area)’.
The claim in effect was the plan was being made prematurely. The claimant argued that because the appropriate local plan had not yet been adopted and there were no strategic policies to comply with, it was impossible for a neighbourhood development plan to be made. The court rejected this submission. It followed and approved several earlier statements to the same effect by the High Court. The statutory framework of Part 2 of the 2004 Act envisages a “local development scheme” comprising “development plan documents”, which will together form the statutory development plan for the local planning authority’s area. It follows that a neighbourhood development plan, once made, will be a constituent part of the development plan (section 38A(2) of the 2004 Act). Lord Justice Linbdlom then drew these conclusions, which will no doubt prove useful in future cases:
one would expect, the statutory scheme seeks to ensure an appropriate degree of
consistency between a neighbourhood development plan and the strategy of the
extant, statutorily adopted development plan. That is the essential purpose of
the “basic condition” in paragraph 8(2)(e). Section 13 of the 1990 Act requires
local planning authorities to keep their development plan documents under
review. If a neighbourhood development plan has been made and the local
planning authority later produces a development plan document containing new
“strategic policies”, that development plan document will, under section 38(5)
of the 2004 Act, prevail over any inconsistent policies in the neighbourhood
development plan. And if a policy in a neighbourhood development plan is not, or ceases to be, up-to-date, this will be a material consideration in a development control decision, and may justify departing from that policy".
The absence of up to date housing policies in a local plan does not prevent a neighbourhood plan from being made. But the council’s victory here may prove Pyrrhic, for if one follows the judgment’s logic, it follows that the neighbourhood plan’s effect may be only temporary. When a local plan is eventually created, its policies will take priority in the event of a conflict with the neighbourhood plan because they will be more recent. So although a neighbourhood plan can be produced first, its effects may be limited, given the hierarchy between plans envisaged by the statutory framework. Of course, the question of what policies will be ‘inconsistent’ with one another, will depend on the particular circumstances of each plan.
“The degree of conformity required is “general” conformity with “strategic” policies. Whether there is or is not sufficient conformity to satisfy that requirement will be a matter of fact and planning judgment (see the judgment of Laws L.J. in Persimmon Homes and others v Stevenage Borough Council  1 W.L.R. 334, …).”
The claimant’s second ground concerned the likelihood of successful mitigation and the Council’s obligations under article 6(3) of Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”) and regulation 102 of the Conservation of Habitats and Species Regulations 2010 (“the Habitats regulations”). The Court restated standard principles and found that the regulations were for the most part complied with. It emphasised that the context here was one of plan-making and not a decision on a planning permission. The relevant planning judgment had to be somewhat hypothetical, or at least directed towards unknowable future events. Lord Justice Lindblom said: “Such uncertainty might well have been an obstacle to a grant of planning permission for a proposed development of housing. But it was not an obstacle to allocations for housing development in Newick being made in the NNP”.
The court also addressed issues arising out of the SEA Directive. As with the Habitats Directive, the Court found that there was some failure to comply with EU law obligations, but that failure had not prejudiced the claimant in any way and was thus not sufficient for the court to award a remedy.
The court also addressed – and rejected – a claim that the plan had not taken into account the NPPF. It also rejected the claim of apparent bias on the basis that the inspector is chosen by the Council on the basis – inevitably – of his or her earlier record in examining plans. The court said that the process did not breach the statutory requirement that an examiner be “independent” nor did it give rise to apparent bias.
Pavlos Eleftheriadis, Barrister, Francis Taylor Building, London.