ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE FOSKETT
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Lindblom
| R. (on the application of DLA Delivery Ltd.)
|Lewes District Council
|Newick Parish Council
Ms Clare Parry (instructed by Sharpe Pritchard) for the Respondent
The interested party did not appear and was not represented
Hearing dates: 15 and 16 November 2016
Crown Copyright ©
Lord Justice Lindblom:
The issues in the appeal
The statutory scheme for the preparation of neighbourhood development plans
The NNP process
"[It] is a largely rural area of just under eight square kilometres (three square miles) in the North of Lewes District. It lies on the Greenwich Meridian and in the Low Weald of East Sussex. At its centre is the Village of Newick, this being the only settlement of any size in the Parish. The nearest towns are Haywards Heath, seven miles to the west, Uckfield, five miles to the east, Burgess Hill, eight miles to the southwest and Lewes , eight miles to the south."
The population of the village is about 2,500. It is about 7 kilometres from the Ashdown Forest Special Protection Area ("the SPA") and the Ashdown Forest Special Area of Conservation ("the SAC"), one of the largest continuous blocks of lowland heath in the south-east of England, which provides habitat for two species of ground-nesting birds the European Nightjar and the Dartford Warbler, both of them European Protected Species.
Ground 1 paragraph 8(2)(e) of Schedule 4B
"(2) A draft order meets the basic conditions if
(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the order,
(d) the making of the order contributes to the achievement of sustainable development,
(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),
(f) the making of the order does not breach, and is otherwise compatible with EU obligations, and
Under section 38(3)(b) of the 2004 Act, the "development plan" comprises "the development plan documents (taken as a whole) which have been adopted or approved in relation to [the] area". However, paragraph 17(a) of Schedule 4B states that reference to the "development plan" in this schedule "does not include so much of a development plan as consists of a neighbourhood development plan under section 38A of [the 2004 Act]". There is no relevant statutory definition of "strategic policies", or of the concept of "general conformity".
"184. Neighbourhood planning provides a powerful set of tools for local people to ensure that they get the right types of development for their community. The ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan. To facilitate this, local planning authorities should set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible. Neighbourhood plans should reflect these policies and neighbourhoods should plan positively to support them. Neighbourhood plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies.
185. Outside these strategic elements, neighbourhood plans will be able to shape and direct sustainable development in their area. Once a neighbourhood plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains takes precedence over existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict. Local planning authorities should avoid duplicating planning processes for non-strategic policies where a neighbourhood plan is in preparation."
Paragraph 198 says that "[where] a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted". In Woodcock Holdings, Holgate J. (in paragraph 24 of his judgment) endorsed the submission of counsel for the Secretary of State that the policy in paragraph 198 does not give "enhanced status to neighbourhood plans as compared with other statutory development plans".
"Neighbourhood plans, when brought into force, become part of the development plan for the neighbourhood area. They can be developed before or at the same time as the local planning authority is producing its Local Plan.
A draft neighbourhood plan or Order must be in general conformity with the strategic policies of the development plan in force if it is to meet the basic condition. A draft Neighbourhood Plan or Order is not tested against the policies in an emerging Local Plan although the reasoning and evidence informing the Local Plan process may be relevant to the consideration of the basic conditions against which a neighbourhood plan is tested.
Where a neighbourhood plan is brought forward before an up-to-date Local Plan is in place the qualifying body and the local planning authority should discuss and aim to agree the relationship between policies in:
- the emerging neighbourhood plan
- the emerging Local Plan
- the adopted development plan
with appropriate regard to national policy and guidance.
The local planning authority should work with the qualifying body to produce complementary neighbourhood and Local Plans. It is important to minimise any conflicts between policies in the neighbourhood plan and those in the emerging Local Plan. This is because section 38(5) of [the 2004 Act] requires that the conflict must be resolved by the decision maker favouring the policy which is contained in the last document to become part of the development plan."
When that guidance was revised in February 2016 a passage was added which said that " allocating reserve sites [in neighbourhood plans] to ensure that emerging evidence of housing need is addressed can help minimise potential conflicts and ensure that policies in the neighbourhood plan are not overridden by a new Local Plan".
" (i) although [the NNP] is required to be in general conformity with the strategic policies of the Local Plan , this was not possible in this case because the adopted Local Plan (which was adopted in 2003 and addressed development needs for the period 1991 to 2011) does not contain any relevant strategic content as regards the contemporary housing needs for the area; (ii) all of the available evidence demonstrates that [the NNP] was never intended to be in conformity with the adopted Local Plan, but to be in conformity with the emerging Local Plan ((Part 1): Core Strategy); (iii) the housing requirement in the Local Plan has not yet been decided and the emerging Local Plan is still in the process of examination yet [the NNP] (and, it is said, the examiner in particular) relies upon the content of the emerging Local Plan for its strategic content, especially in terms of the delivery of ["Suitable Alternative Natural Greenspace" ("SANG")]; (iv) there is no policy requiring a review of [the NNP] which will henceforth be the local development plan for Newick until 2030. It is argued that [the NNP] cannot be in conformity with the emerging Local Plan because the latter is not yet adopted."
"The introduction, or supporting text, to this section is simply wrong. It states that the Neighbourhood Plan has to accord with the allocation of housing in the emerging Local Plan. This fails to reflect national legislation."
He recommended the deletion of the offending text.
"To reflect the emerging housing target of [the core strategy], this plan seeks to allocate sites for the construction of 100 new homes by 2030, ."
So, submitted Mr Young, the NNP failed the "basic condition" in paragraph 8(2)(e). It could not be in "general conformity" both with the housing policies of the 2003 local plan and with the housing policies of the emerging core strategy. Section 38(5) of the 2004 Act does not overcome DLA's concern here, which is that the NNP was found to meet the requirement of "general conformity" in a vacuum, before the core strategy was adopted, and had been relied upon by the district council in refusing planning permission for the Mitchelswood Farm proposal.
"In my judgment, a neighbourhood development plan may 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 is at present no development plan document setting out strategic policies for housing. The examiner was therefore entitled in the present case to conclude that the Neighbourhood Plan satisfied basic condition 8(2)(e) of Schedule 4B to the 1990 Act as it was in conformity with such strategic policies as were contained in development plan documents notwithstanding the fact that the local planning authority had not yet adopted a development plan document containing strategic policies for housing. ."
and (in paragraph 59):
"[As] a matter of statutory language, there is nothing in the provisions of either Schedule 4B to the 1990 Act or the provisions of the 2004 Act governing neighbourhood development plans to support the contention that a neighbourhood development plan cannot include policies dealing with the use and development of land for housing in the absence of a development plan document setting out strategic policies on housing issues. [The condition in paragraph 8(2)(e)] is dealing with a situation where there are in existence strategic policies and they are contained in a development plan document and there is a conflict between those policies and the policies contained in a neighbourhood development plan. The condition is not dealing with a situation where there are no strategic policies dealing with particular issues contained in a development plan document. The condition is not worded in terms that a neighbourhood development plan cannot include policies dealing with particular issues unless and until a development plan document is brought into existence containing strategic policies on such issues."
To the same effect, though not on precisely parallel facts, is the reasoning of Supperstone J. in BDW Trading (in paragraph 82 of his judgment), Holgate J. in Woodcock Holdings (in paragraph 131 of his judgment), and since Foskett J.'s judgment was handed down, Holgate J. in R. (on the application of Crownhall Estates Ltd.) v Chichester District Council  EWHC 73 (Admin) (in paragraphs 27 to 29 and 60 to 64 of his judgment).
Ground 2 article 6(3) of the Habitats Directive and regulation 102 of the Habitats regulations
"SANG(s) will be provided at an appropriate scale, design and location in accordance with advice from Natural England. The delivery of a SANG or SANGs is in order to successfully offset the impact of residential development in the 7km zone around the Ashdown Forest. Therefore, until such a time that appropriate SANG provision is delivered or site specific mitigation is provided that is agreed to be suitable by the District Council and Natural England, development resulting in a net increase of one or more dwellings within the 7km zone will be resisted."
"As can be seen in Table 1 below, a screening assessment has been undertaken. From the findings of the screening assessment, it has been determined that [the NNP] would not cause a likely significant effect to the Ashdown Forest SAC/SPA, either alone or in combination with other plans. As such, we have screened out the site from further stages of the HRA process."
Table 1, "Screening Assessment of Ashdown Forest SAC/SPA", under the heading "LIKELY SIGNIFICANT EFFECTS TO SITE (INLCUDING POTENTIAL 'IN-COMBINATION' IMPACTS)?", referred to the conclusions in the HRA that there would be no significant effect on the European site either from nitrogen deposition caused by traffic generated by the new development, or, with the necessary mitigation for development within 7 kilometres of the European site, from recreational disturbance. It stated:
"The HRA for the Lewes District Core Strategy considered whether nitrogen deposition on the site, caused by traffic, would be significant. It found that it would not. As [the] will plan for the same amount of development as the Core Strategy, it is assumed that it would also not have a significant effect.
The HRA for the Lewes District Core Strategy considered whether recreational disturbance caused by residents from new development would have a significant effect on the site. It found that development within 7km of the Forest would need to be mitigated against. The Core Strategy introduces the necessary mitigation and therefore the HRA found that development would not have a significant effect on the site. As [the NNP] will plan for the same amount of development as the Core Strategy, it is assumed that it would also not have a significant effect."
" Much of Newick lies within that zone and it has been agreed that [SANGs] must be developed before any new housing is permitted within the zone. It is understood that [the district council] is working towards provision of such [SANGs]. "
"I note above that [the NNP] recognises the need to provide [SANGs]. As a consequence of the location of the Neighbourhood Area in relation to the Ashdown Forest SPA, relevant development proposals must provide mitigation measures to be delivered prior to occupation and in perpetuity. Any such measures should include the provision of [SANGs].
It is not the role of a neighbourhood plan to set policy requirements for matters that need to be considered on a more strategic basis. [The NNP] does not, in itself, seek to allocate SANGS but it does highlight the need for them. I consider that, in the interests of clarity, it would be appropriate to set this out within Policy HO1.
- Policy HO1, add "HO1.7 Due to the Neighbourhood Area's location, relevant development proposals must provide mitigation measures to be delivered prior to occupation of the development and in perpetuity. Measures should include the provision of [SANGs]."
I note that there is no substantive evidence to demonstrate that it would not be possible to meet the proposed requirements resulting from the above. I also note in this specific regard that [the district council] is working towards the provision of [SANGs] and that this is recognised within [the NNP]."
Policy HO1.7 was duly added to the NNP. It stated:
"HO1.7 Due to the Neighbourhood Area's location, relevant development proposals must provide mitigation measures to be delivered prior to occupation of the development and in perpetuity. These measures should include the provision of [SANGs], or similar as agreed by [the district council] and Natural England, as well as contributions to a monitoring and management strategy at Ashdown Forest."
"Natural England, [the district council's] expert advisers in this instance, has been consulted in relation to the submitted scheme. They have confirmed that they consider that the proposals fulfil the criteria for SANG. Furthermore they have confirmed that the size of the SANG being 11.8 hectares, is sufficient in size to meet the full policy criteria of 8ha per 1000 population i.e. it will mitigate against the effect of up to 1,375 people or approximately 572 new dwellings."
and (in paragraph 6.43):
"Long term financing of the maintenance and management of the SANG is likely to be secured through Section 106 contributions sought from future housing developments coming forward in the 7km zone. As set out above the sites already allocated in [the NNP] will provide at least 100 additional dwellings. Discounting the site that already has planning permission (Cricketfield) this leave a minimum of 67 units. Whilst details of the expected management costs are still awaited from the applicants it is not expected that these are likely to be high and are therefore unlikely to result in unreasonable or unviable costs for future housing proposals coming forward in the 7km zone of influence."
On 16 November 2016, as we were told after the hearing of the appeal, the district council granted planning permission for the SANGs at Jackies Lane, subject to a section 106 agreement committing the developer to transfer it to the parish council, the district council or a management company for its upkeep.
Ground 3 deliverability
Ground 4 regulations 5 and 9 of the SEA regulations
"For their Joint Core Strategy, [the district council] and the South Downs National Park Authority carried out a full sustainability appraisal on the contents of their plan. That sustainability appraisal incorporated the requirements of [the SEA Directive]."
Paragraph 2.6 stated:
"As reported in Appendix 1, we have considered whether or not there is a need for our sustainability appraisal also to incorporate the requirements of [the SEA Directive]. We have concluded that [the NNP] would not have any significant environmental effect that has not been considered already in [the district council's] sustainability appraisal. As a result, we propose that our sustainability appraisal be simple and appropriate for a local-level plan."
Consultees were then asked whether they "[agreed] with the findings of the analysis presented in Appendix 1", and whether they "[believed] that a simple sustainability appraisal is appropriate for [the NNP]". In section 3, "Parish Portrait" (pp.4 to14), sub-section 3.4, "Environmental", described the relevant environmental constraints and designations, including "European Protected Sites" (paragraph 3.4.2), "Sites of Special Scientific Interest" (paragraph 3.4.3), "Conservation Areas" (paragraph 3.4.5), "Listed Buildings" (paragraph 3.4.6), "Flooding" (paragraph 3.4.7), "Tree Preservation Orders" (paragraph 3.4.9) and "Ancient Woodland" (paragraph 3.4.10). Paragraph 3.4.2 said that "Newick has no European Protected Sites within it, but is close to Ashdown Forest", referred to the SPA and the SAC and the "protected zone , encompassing all land within 7 km. of [the] boundary [of Ashdown Forest", and continued:
" Much of Newick lies within that zone and it has been agreed that [SANGs] must be developed before any new housing is permitted in the zone. It is understood that [the district council] is working towards provision of such [SANGs] and will recoup their cost by charging the developers of all new housing.".
Section 4, "Sustainability Issues" (pp.15 and 16), identified the "main sustainability issues" environmental, social and economic. Section 5, "Sustainability Appraisal" (pp.17 to 20), described the "Sustainability Framework" for the NNP, by reference to 12 "sustainability objectives" and their "corresponding indicators". In section 6, "Next Steps" (p.21), paragraph 6.2 explained that the "sustainability framework will be used to appraise development and policy options for [the NNP], identifying options that would deliver sustainable outcomes", and paragraph 6.3 that the "final sustainability report will accompany the proposed Neighbourhood Development Plan that will be submitted to [the district council]" and " will be the document that demonstrates, as required by the Neighbourhood Planning Regulations, that the making of the plan contributes to the achievement of sustainable development".
"A1. The SEA regulations transpose [the SEA Directive] into law. It requires that those making plans that could impact on the environment to consider whether they are likely to have a significant effect or not.
A.2. In order to assess the likely significance of the plan on the environment, the purpose of the plan has been appraised against the criteria detailed in [the SEA regulations] and [the SEA Directive]. This is seen in the table below."
"A3. The above analysis was undertaken by [the district council] on behalf of [the parish council]. In the light of the analysis, it is not thought that [the NNP] would have a significant environmental effect."
" Provided your analysis fits within the context and assumptions of the district's SA/SEA of the local plan [sic], your appraisal is appropriate."
Ground 5 apparent bias
"(6) The person appointed must be someone who, in the opinion of the person making the appointment
(a) is independent of the qualifying body and the authority,
(b) does not have an interest in any land that may be affected by the draft order, and
(c) has appropriate qualifications and experience."