Given the ongoing difficulties many local planning authorities are experiencing in bringing forward up to date local plans, the question of whether a neighbourhood plan can come forwards ahead of an up to date local plan has long been controversial. This issue has been considered by the Court of Appeal in a challenge to the Newick Neighbourhood Plan (NNP).
The Court of Appeal in DLA Delivery v Lewes District Council  EWCA Civ 58 have upheld the approach taken in a number of High Court judgments in finding that a neighbourhood plan is not prevented from coming forwards ahead of an up to date local plan. Lindblom LJ rejected the argument that in order to meet the basic conditions necessary to adopt a neighbourhood plan there must be an up to date local plan for the neighbourhood plan to be in 'general conformity' with. The statutory requirement for a neighbourhood plan to be in general conformity with the strategic policies contained in the development plan simply means that if there are strategic policies the neighbourhood plan must not be otherwise than in accordance with them. Whether the neighbourhood plan is in general conformity with the strategic policies of the development plan is a matter of planning judgment.
DLA also sought to argue that the legislative requirement that a neighbourhood plan examiner is selected by a local planning authority gave rise to apparent bias. This was firmly rejected by the Court of Appeal.
Another issue of wider importance that arises out of this appeal is the correct approach to policy making where there will need to be provided a SANG to compensate for development within a certain distance of a European Site. The sites allocated for housing in the NNP were all within 7 kilometres of Ashdown Forest, a European Site. At the time of the examination of the NNP no site for a SANG had been identified. Lindblom LJ accepted that it was not necessary at the time of the development of the plan for the site of a SANG and the exact timing of a SANG to be known.
The Court did accept, however, that the examiner should have considered the lack of positive evidence at the time of the examination that a SANG would come forwards and failure to do so was an error (the examiner having merely stated there was no substantive evidence a SANG would not come forwards without explaining the basis for so concluding). However the Court decided that as a SANG had subsequently been identified and obtained planning permission they would exercise their discretion to refuse relief.
The final issue arises in relation to the approach to strategic environmental assessment of neighbourhood plans. The need for an SEA of the NNP had been screened out relying in part on the SEA of the forthcoming Local Plan. The Court of Appeal accepted that it was open to Newick to rely on the SEA of the forthcoming Local Plan but found on the facts the screening opinion did not go far enough in explaining why there were no likely significant effects which was a breach of regulation 9(3) of the SEA Regulations. However as it was now inconceivable the outcome would be any different if more complete reasons were given the Court again exercised their discretion to refuse relief.
What does this mean?
Absent intervention from the Supreme Court it will not be possible to challenge a NP purely on the basis it has come forwards ahead of an up to date local plan. Careful consideration will need to be given to the relationship between the NP and the forthcoming local plan. In this respect it needs to be recalled that if a NP comes forwards ahead of a local plan and the housing figures in the local plan subsequently go up the more up to date policies of the local plan will take precedence once adopted. The relationship between a NP and a forthcoming local plan may be made easier by proposals it the White Paper that a neighbourhood planning group will be able to obtain a housing requirement figure. For those developing any plans that will rely on SANG mitigation, careful justification needs to be given as to why the examiner/inspector is satisfied the SANG is likely to come forwards. Careful justification also needs to be given for screening out the need for an SEA. The courts remain open to using their discretion not to quash even when a challenge is based on European law.
Clare Parry acted for Lewes District Council. Click here to view the judgment.