Judgment has been handed down in the first
Neighbourhood Plan (NP) case to reach the Court of
Appeal, reinforcing the position that NPs can come forward in the
absence of up to date Local Plans.
discussed previously, developer DLA Delivery Limited judicially
reviewed the decision to hold a referendum on the draft NP as, in
addition to environmental concerns, DLA claimed that the plan was
not in accordance with the appropriate strategic policies.
The NP had been prepared in accordance with the policies of the
unadopted, emerging Local Plan, rather than the expired strategic
In the High Court, Foskett J dismissed the claim, allowing
permission to appeal on the ground of conformity with strategic
policies. Permission was subsequently given to appeal on
Conformity with what?
On the first ground, whether the district council misunderstood
and misapplied the requirement that the NP be in general conformity
with the strategic local policies, Lord Justice Lindblom agreed
with Foskett J that a NP could proceed in the absence of a
strategic development plan document. Lindblom LJ added that where
the local plan is historic, a NP cannot logically lack general
conformity, as the plans are made for wholly different
periods. The judgment makes clear that a NP can come forward
in the absence of an up to date local plan. Both the National Planning Policy Framework
(NPPF) and Planning Policy Guidance
(PPG) references to a NP being in general
conformity are intended to prevent the "mischief" of a NP
frustrating an up to date local plan, rather than requiring a local
plan to be in place first.
Properly assessed, but not explained
On the second ground, whether the NP failed to meet Habitats
Directive requirements due to the lack of evidence that the
Suitable Alternative Natural Greenspace (SANG)
required to mitigate the proposed development would be
provided. Lindblom LJ found that the examiner was not
irrational to have considered that SANG would have to be provided,
despite the timing and location being uncertain (unlike the level
of certainty needed when dealing with a planning
application). The examiner failed to address the lack of
evidence for SANGs, and should have done, but Lindblom LJ did not
consider this to be fatal, finding that addressing the lack of
evidence would not have changed the conclusion.
This judgment clearly demonstrates that NPs can come forward in
the absence of an up to date local plan. However, the groups
preparing NPs in such areas should be aware of the risk that their
NPs may become "out of date" when a local plan with a
higher objectively assessed housing need is adopted. The Written Ministerial Statement, as clarified by
the Housing White Paper, provides protection for
NPs unless there is a significant lack of delivery in the local
planning authority area – but this will be outside the
control of the NP group. Many NP groups and local authorities
will also be reassured by Lindblom LJ's robust defence of the
current way of appointing examiners.
The judgment also flagged other areas of caution for NP bodies.
Lord Justice Lindblom found the consideration of the environmental
mitigation by the examiner was not wholly correct, whilst
concluding that it was not fatal to the plan. The conclusion
that the screening opinion was actually in breach of some habitats
legislation will be a particular red flag. Screening opinions
and SEA considerations raise particular risks for NPs. NP
forums need to give careful attention to their proper preparation,
which can be tricky where groups may have limited experience of
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