Two recent important developments have helped clarify the law in relation to neighbourhood plans.
Firstly on the 7th July 2017 the Supreme Court refused permission to appeal in DLA Delivery Ltd v Lewes District Council  EWCA Civ 58. It is therefore now beyond doubt that a Neighbourhood Plan can come forwards ahead of an up to date local plan.
Secondly, and separately, on the 18th July 2017 Lang J handed down judgment in Bewley Homes Ltd v Waverley Borough Council  EWHC 1776 (Admin), and in doing so dismissed a challenge by various developers to the Farnham Neighbourhood Plan.
The first rejected ground of challenge was that the neighbourhood plan could not properly be said to be in 'general conformity' with the time expired local plan's saved policies, because it sought to allocate development outside the de facto settlement boundary of the local plan. The judge was clear that the phrase 'in general conformity' allows a degree of flexibility and the question of whether two plans were in general conformity is a matter of planning judgment and as such will be very difficult to challenge by way of judicial review.
The judge further made the point that where policies in a local plan were in effect redundant they could in any event be disregarded for the purposes of considering the requirement of general conformity. This provides useful guidance on the correct interpretation of Lindblom LJ's judgment in DLA Delivery Ltd.
Also of particular importance, Lang J confirmed the suggestion made by Holgate J. in R (Crownhall Estates Limited) v Chichester District Council  EWHC 73 that the standard of reasons expected from the examiner of a Neighbourhood Plan is not to be judged using the familiar South Bucks test. She stated:
"I consider that an Examiner examining a neighbourhood plan is undertaking a function which is narrowly prescribed by statute and he is subject to a limited statutory duty to give reasons. It is distinguishable from the function of an Inspector determining a planning appeal, where the duty to give reasons is expressed in general terms. Therefore the South Bucks principles have to be modified to reflect these differences."
Implications of these developments:
- It will now be impossible to challenge a Neighbourhood Plan for not being in 'general conformity' with the development plan on the basis of the absence of an up-to-date development plan.
- In fact any form of challenge based on the Neighbourhood Plan not being in general conformity with the development plan is likely to be difficult, although as observed by Dove J in Swan Quay there is a limit to the flexibility in the concept of general conformity.
- It will also now be more difficult to bring a reasons challenge to the making of a Neighbourhood Plan. Where reasons are required to be given on a topic they must still be adequate but regard must be had to the statutory limitations on the reasons duty.
Clare Parry acted for Lewes District Council in DLA Delivery v Lewes DC and for Waverley Borough Council in Bewley Homes Ltd v Waverley Borough Council.