R (on the application of DLA Delivery Ltd) v Lewes District Council Newick Parish Council (Interested Party)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lewison L.J.
Judgment Date10 February 2017
Neutral Citation[2017] EWCA Civ 58
Date10 February 2017
Docket NumberCase No: C1/2015/3025

[2017] EWCA Civ 58

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE FOSKETT

[2015] EWHC 2311 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

and

Lord Justice Lindblom

Case No: C1/2015/3025

Between:
R. (on the application of DLA Delivery Ltd.)
Appellant
and
Lewes District Council
Respondent

and

Newick Parish Council
Interested Party

Mr Christopher Young and Mr James Corbet Burcher (instructed by Irwin Mitchell LLP) for the Appellant

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

Judgment Approved by the court for handing down (subject to editorial corrections)

Lord Justice Lindblom

Introduction

1

This appeal concerns the process by which a neighbourhood development plan was prepared for the parish of Newick in East Sussex — the Newick Neighbourhood Plan ("the NNP").

2

In a claim for judicial review the appellant, DLA Delivery Ltd., challenged the decision of the respondent, Lewes District Council, to allow the NNP to proceed to a referendum under paragraph 12 of Schedule 4B to the Town and Country Planning Act 1990, prior to its statutory "making" – effectively its adoption — under section 38A(4) of the Planning and Compulsory Purchase Act 2004. The NNP had been prepared by the interested party, Newick Parish Council. The claim was dismissed by Foskett J. on 31 July 2015. He granted permission to appeal on a single ground. On 5 April 2016 I granted permission on the other four.

The issues in the appeal

3

As now refined, the grounds of appeal raise five issues. First, did the district council misunderstand and misapply the requirement in paragraph 8(2)(e) of Schedule 4B that a neighbourhood development plan be in "general conformity with the strategic policies contained in the development plan for the area of the [local planning] authority (or any part of that area)" (ground 1)? Secondly, did it fail to discharge the requirements of 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") (ground 2)? Thirdly, did it fail to have regard to relevant national policy and guidance for the delivery of new housing, in the National Planning Policy Framework ("NPPF") and the Planning Practice Guidance ("PPG") (ground 3)? Fourthly, did it proceed in breach of regulations 5(6) and 9 of the Environmental Assessment of Plans and Programmes Regulations 2004 ("the SEA regulations") (ground 4)? And fifthly, did it fail to comply with the requirement in paragraph 7(6) of Schedule 4B that the examiner of a neighbourhood development plan should be "independent", and was the NNP process thus infected by apparent bias (ground 5)?

The statutory scheme for the preparation of neighbourhood development plans

4

Neighbourhood planning was an important part of the coalition Government's "localism" agenda. The provisions for the preparation of a "neighbourhood development plan" – in sections 38A, 38B and 38C of the 2004 Act and Schedule 4B to the 1990 Act — were introduced by the Localism Act 2011 (see the first instance judgment in Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin), at paragraphs 1 and 6). Section 38(A)(2) of the 2004 Act defines a neighbourhood development plan as "a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan". Once made, a neighbourhood development plan becomes part of the development plan (section 38(3)(c) of the 2004 Act), in accordance with which planning applications must be determined unless material considerations indicate otherwise (section 38(6)).

5

Where a neighbourhood development plan is to be prepared, a "qualifying body" must make an application for the designation of an area as a "neighbourhood area" (Part 2 of the Neighbourhood Planning (General) Regulations 2012 ("the 2012 regulations")). The local planning authority must assist in this process (paragraph 3 of Schedule 4B to the 1990 Act). The neighbourhood development plan, once prepared, must be consulted upon under regulation 14 of the 2012 regulations, submitted to the local planning authority under regulation 15, and publicized by the local planning authority under regulation 16. If the local planning authority considers that the requirements of paragraph 6 of Schedule 4B have been complied with, it must submit the "draft neighbourhood development order" for examination under paragraph 7. The examiner's remit is relatively limited (see the judgment of Holgate J. in Woodcock Holdings Ltd. v Secretary of State for Communities and Local Government [2015] EWHC 1173 (Admin), at paragraphs 61, 62, 132 and 133, and the judgment of Supperstone J. in BDW Trading Ltd. v Cheshire West and Chester Borough Council [2014] EWHC 1470 (Admin), at paragraphs 83 and 84). He must consider whether the draft order meets the "basic conditions" – which do not include the question of whether the neighbourhood development plan is "sound" (paragraph 8(1) and (2) of Schedule 4B). He must prepare a report, recommending either that the draft order, with or without modifications, is submitted to a referendum or that the proposal for the order is refused (paragraph 10). He may only recommend that the order is submitted to a referendum if it complies with the "basic conditions" (paragraph 10(4)). If the local planning authority is satisfied that the neighbourhood development plan "meets the basic conditions", is "compatible with the Convention rights", and complies with any provision under section 61E(2), 61J and 61L of the 1990 Act, a referendum on the making of the neighbourhood development order must be held (paragraph 12(4) of Schedule 4B). If more than half of those voting have voted in favour of it, the local planning authority must "make" the neighbourhood development plan unless to do so would breach "any EU obligation or any of the Convention rights" (section 38A(4) and (6) of the 2004 Act).

The NNP process

6

The parish of Newick is described in the NNP (in section 1, "Newick Past and Present") in this way:

"[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.

7

In 2003 the district council adopted the Lewes District Local Plan, whose plan period ran from 1991 to 2011. Some of the policies of that local plan, including Policy RES1, which provided for 4,600 new dwellings in the plan period, were in due course saved and remained effective until the district council and the South Downs National Park Authority adopted the Lewes District Local Plan Part 1: Joint Core Strategy, for a plan period running from 2010 to 2030. The core strategy provides for a minimum of 100 net additional dwellings in Newick, on sites to be identified in the Lewes District Local Plan Part 2: Site Allocations and Development Management Policies Development Plan Document or in neighbourhood development plans. It was published in draft in November 2011. The examination hearings began in January 2015. In his report, published in March 2016, the inspector concluded that it was sound. It was adopted by the district council in May 2016 and by the National Park Authority on 23 June 2016. Its adoption has been challenged by Wealden District Council in proceedings now before the Planning Court. That claim was heard on 8 February 2017, and judgment was reserved.

8

The preparation of the NNP began in 2013. The work was undertaken by a steering group formed by the parish council, with assistance from officers of the district council. In his report, published on 3 December 2014, the examiner, Mr Nigel McGurk, B.Sc. (Hons.), M.C.D., M.B.A., M.R.T.P.I., said that the preparation of the NNP had been a "major, sustained community effort". He concluded that, subject to a number of modifications, the NNP "is in general conformity with the strategic policies of the development plan for the area", and that it "meets the basic conditions" (p.25 of his report), and he recommended that it should proceed to a referendum (p.26). The NNP identified four sites for housing — under Policy HO2, Policy HO3, Policy HO4 and Policy HO5. It was put to a referendum on 26 February 2015. There were 846 votes in favour and 102 against, on a turnout of 49%. It was duly made by the district council on 22 July 2015.

9

DLA had promoted a site at Mitchelswood Farm in Newick for allocation in the NNP, without success. But planning permission for a development of up to 50 dwellings on that site was granted by the Secretary of State for Communities and Local Government on appeal on 23 November 2016. The site is outside the 7 kilometre "zone of influence" for the SPA and the SAC. The sites allocated in the NNP are all within that "zone...

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