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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> DLA Delivery Ltd, R (On the Application Of) v Lewes District Council [2015] EWHC 2311 (Admin) (31 July 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/2311.html Cite as: [2015] EWHC 2311 (Admin), [2015] CN 1420 |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of ![]() ![]() ![]() ![]() |
Claimant |
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- and – |
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![]() ![]() |
Defendant |
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- and – |
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NEWICK PARISH COUNCIL |
Interested Party |
____________________
Clare Parry (instructed by Sharpe Pritchard) for the Defendant
The Interested Party was not present or represented
Hearing dates: 13-14 July 2015
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Mr Justice Foskett:
Introduction
"Neighbourhood development plans … do not take effect unless there is a majority of support in a referendum of the neighbourhood.
They also have to meet a number of conditions before they can be put to a community referendum and legally come into force. These conditions are to ensure plans are legally compliant and take account of wider policy considerations (e.g. national policy).
Conditions are:
1. they must have regard to national planning policy
2. they must be in general conformity with strategic policies in the development plan for the local area (i.e. such as in a core strategy)
3. they must be compatible with EU obligations and human rights requirements.
An independent qualified person then checks that a neighbourhood development plan or order appropriately meets the conditions before it can bevoted
on in a local referendum. This is to make sure that referendums only take place when proposals are workable and of a decent quality.
Proposed neighbourhood development plans … need to gain the approval of a majority ofvoters
of the neighbourhood to come into force. If proposals pass the referendum, the local planning authority is under a legal duty to bring them into force."
"183. Neighbourhood planning gives communities direct power to develop a sharedvision
for their neighbourhood and deliver the sustainable development they need. Parishes and neighbourhood forums can use neighbourhood planning to:
• set planning policies through neighbourhood plans to determine decisions on planning applications; and• grant planning permission through Neighbourhood Development Orders and Community Right to Build Orders for specific development which complies with the order.
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 take 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.
…
198. Where a Neighbourhood Development Order has been made, a planning application is not required for development that is within the terms of the order. Where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted."
The local area concerned
"[It] is a largely rural area of just under eight square kilometres (three square miles) in the North ofLewes
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,
the county town of East Sussex and base of
Lewes
District Council, eight miles to the south."
"The population of theVillage
was about 1000 in the mid 1800's and remained at that level until the 1960s. Then as a result of housing developments on what had been the main fruit growing area, between the main road (the A272) and Allington Road, the numbers increased to almost 2,500 by 1981. The population has remained a little below 2,500 for the past thirty years ….
Census results show that in 2001 over half of Newick's residents were under 45 years old, whereas by 2011 over half were over 45 years old. This is consistent with the fact that many young families came to Newick during its rapid expansion of the 1960s and 1970s. Since then the parents of those families have remained but their children have moved away, and in the subsequent decades, there was a lack of housing at prices that would attract further young families.Lewes
District Council figures show that the total number of households in the Parish as at February 2014 was 1,047. Included in this figure are 99 units of Social Housing managed by
Lewes
District Council and 28 units of Social and Affordable Housing managed by Housing Associations. The remainder of the housing is either owner occupied or privately rented."
The Claimant and its interest in the Newick NDP
National policies concerning the provision of housing
The EU protections and their effect on Ashdown Forest
"(2) Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
(3) Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site inview
of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."
"102. (1) Where a land use plan -
(a) is likely to have a significant effect on a European site … (either alone or in combination with other plans or projects), and
(b) is not directly connected with or necessary to the management of the site, the plan-making authority for that plan must, before the plan is given effect, make an appropriate assessment of the implications for the site inview
of that site's conservation objectives …
(4) In light of the conclusion of the assessment, and subject to regulation 103 (considerations of overriding public interest), the plan-making authority … must give effect to the land use plan only after having ascertained that it will not adversely affect the integrity of the European site."
"The discharge of its duties under the Habitats Directives and the Habitats Regulations by a competent authority is a two stage process. First the authority must consider whether there is a risk of significant adverse effects on a protected site. It is only if satisfied that there is no such risk that it may take no further step. But if there is such a risk, then the requirement for an appropriate assessment is triggered; and the authority must not give consent to authorisation of a plan or project unless satisfied that the risk of significant adverse effects can be excluded (subject only to the provisions of Article 6(4) in circumstances in which the plan or project must be carried out for imperative reasons overriding public interest). For the purposes of the appropriate assessment the competent authority shall consult the appropriate nature conservation body, in this case Natural England, and shall have regard to any representations made by it, see regulation 48(4)."
"This gives rise in practice to a two-stage process: (1) a screening stage, to determine whether there is a likelihood of significant effects on the relevant site(s) so as to require an appropriate assessment, and (2) unless ruled out at the screening stage, an appropriate assessment to determine in detail whether the plan will cause harm to the integrity of the relevant site(s). At the first stage, "likelihood" is equivalent to "possibility". Advocate General Sharpston described the process as follows in her opinion in Case C-258/11, Sweetmanv
An Bord Pleanala [2013] 3 CMRL 16:
"47. It follows that the possibility of there being a significant effect on the site will generate the need for an appropriate assessment for the purposes of art. 6(3). The requirement at this stage that the plan or project be likely to have a significant effect is thus a trigger for the obligation to carry out an appropriate assessment. There is no need to establish such an effect; it is … merely necessary to determine that there may be such an effect.
48. The requirement that the effect in question be 'significant' exists in order to lay down a de minimis threshold ….
49. The threshold at the first stage of art. 6(3) is thus avery
low one. It operates merely as a trigger, in order to determine whether an appropriate assessment must be undertaken of the implications of the plan or project for the conservation objectives of the site. The purpose of that assessment is that the plan or project in question should be considered thoroughly, on the basis of what the Court has termed 'the best scientific knowledge in the field' ….
50. The test which that expert assessment must determine is whether the plan or project in question has 'an adverse effect on the integrity of the site', since that is the basis on which the competent authorities must reach their decision. The threshold at this (the second) stage is noticeably higher than that laid down at the first stage ….""
"The need for the 7km zone around Ashdown Forest arose from evidence commissioned in 2009 by Mid Sussex District Council and Wealden District Council … looking atvisitor
access patterns at the Forest. This was supplemented in 2010 by research by Natural England … and established that most
visitors
came from the local area, including Crowborough, East Grinstead and Uckfield. As a result a zone of influence for the Ashdown Forest was created, similar to the approach taken at Thames Basin Heaths. The 7km zone around Ashdown Forest represents the area in which a majority of
visitors
reside and was first defined in the Wealden District Core Strategy HRA, in consultation with Natural England."
"In order to avoid the adverse effect on the integrity of the Ashdown Forest Special Protection Area and Special Area of Conservation it is the Council's intention to reduce the recreational impact ofvisitors
resulting from new housing development within 7 kilometres of Ashdown Forest by creating an exclusion zone of 400 metres for net increases in dwellings in the
Delivery
and Site Allocations Development Plan Document and requiring provision of Suitable Alternative Natural Green Space and contributions to on-site
visitor
management measures as part of policies required as a result of development at SD1, SD8, SD9 and SD10 in the Strategic Sites Development Plan Document. Mitigation measures within 7 kilometres of Ashdown Forest for windfall development, including provision of Suitable Alternative Natural Green Space and on-site
visitor
management measures will be contained within the
Delivery
and Sites Allocations Development Plan Document and will be associated with the implementation of the integrated green network strategy. In the meantime the Council will work with appropriate partners to identify Suitable Alternative Natural Green Space and on-site management measures at Ashdown Forest so that otherwise acceptable development is not prevented from coming forward by the absence of acceptable mitigation."
The legal and practical framework for the making of an NDP
"15. - Plan proposals
(1) Where a qualifying body submits a plan proposal to the local planning authority, it must include -
(a) a map or statement which identifies the area to which the proposed neighbourhood development plan relates;(b) a consultation statement;(c) the proposed neighbourhood development plan;(d) a statement explaining how the proposed neighbourhood development plan meets the requirements of paragraph 8 of Schedule 4B to the 1990 Act ; and(e)(i) an environmental report prepared in accordance with paragraphs (2) and (3) of regulation 12 of the Environmental Assessment of Plans and Programmes Regulations 2004; or(ii) where it has been determined under regulation 9(1) of those Regulations that the plan proposal is unlikely to have significant environmental effects (and, accordingly, does not require an environmental assessment), a statement of reasons for the determination.
(2) In this regulation "consultation statement" means a document which—
(a) contains details of the persons and bodies who were consulted about the proposed neighbourhood development plan;(b) explains how they were consulted;(c) summarises the main issues and concerns raised by the persons consulted; and(d) describes how these issues and concerns have been considered and, where relevant, addressed in the proposed neighbourhood development plan."
"46. The process for the making of Neighbourhood Development Orders is set out in Schedule 4B to the 1990 Act. Section 38A(3) of the 2004 Act provides that the references in Schedule 4B to the 1990 Act to "Neighbourhood Development Orders" are to be read as if they were references to "Neighbourhood Development Plans".
47. If a local planning authority receives a proper proposal for a neighbourhood development order (see para 6), then the authority must submit for independent examination the draft neighbourhood development order, and such other documents as may be prescribed (para 7(2)). By para 7(6) the person appointed by the authority to carry out the examination
"… 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."
48. By paragraph 8(1) the examiner must consider whether the proposal meets the "basic conditions" set out in paragraph 8(2) and "such other matters as may be prescribed". Paragraph 8(2) provides, so far as relevant:
"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…"
49. Paragraph 8(6) provides that "the examiner is not to consider any matter that does not fall within sub-paragraph (1) (apart from considering whether the draft order is compatible with the Convention rights)"."
"10(1) The examiner must make a report on the draft order containing recommendations in accordance with this paragraph (and no other recommendations).
(2) The report must recommend either—
(a) that the draft order is submitted to a referendum, or(b) that modifications specified in the report are made to the draft order and that the draft order as modified is submitted to a referendum, or(c) that the proposal for the order is refused.
(3) The only modifications that may be recommended are—
(a) modifications that the examiner considers need to be made to secure that the draft order meets the basic conditions mentioned in paragraph 8(2),(b) modifications that the examiner considers need to be made to secure that the draft order is compatible with the Convention rights,(c) modifications that the examiner considers need to be made to secure that the draft order complies with the provision made by or under sections 61E(2), 61J and 61L,(d) modifications specifying a period under section 61L(2)(b) or (5), and(e) modifications for the purpose of correcting errors.
(4) The report may not recommend that an order (with or without modifications) is submitted to a referendum if the examiner considers that the order does not—
(a) meet the basic conditions mentioned in paragraph 8(2), or(b) comply with the provision made by or under sections 61E(2), 61J and 61L.
(5) If the report recommends that an order (with or without modifications) is submitted to a referendum, the report must also make—
(a) a recommendation as to whether the area for the referendum should extend beyond the neighbourhood area to which the order relates, and(b) if a recommendation is made for an extended area, a recommendation as to what the extended area should be.
(6) The report must—
(a) give reasons for each of its recommendations, and(b) contain a summary of its main findings.
(7) The examiner must send a copy of the report to the qualifying body and the local planning authority.
(8) The local planning authority must then arrange for the publication of the report in such manner as may be prescribed."
"12(1) This paragraph applies if an examiner has made a report under paragraph 10.
(2) The local planning authority must—
(a) consider each of the recommendations made by the report (and the reasons for them), and(b) decide what action to take in response to each recommendation.
(3) The authority must also consider such other matters as may be prescribed.
(4) If the authority are satisfied—
(a) that the draft order meets the basic conditions mentioned in paragraph 8(2), is compatible with the Convention rights and complies with the provision made by or under sections 61E(2), 61J and 61L, or(b) that the draft order would meet those conditions, be compatible with those rights and comply with that provision if modifications were made to the draft order (whether or not recommended by the examiner),
a referendum in accordance with paragraph 14, and (if applicable) an additional referendum in accordance with paragraph 15, must be held on the making by the authority of a neighbourhood development order.
(5) The order on which the referendum is (or referendums are) to be held is the draft order subject to such modifications (if any) as the authority consider appropriate.
(6) The only modifications that the authority may make are—
(a) modifications that the authority consider need to be made to secure that the draft order meets the basic conditions mentioned in paragraph 8(2),(b) modifications that the authority consider need to be made to secure that the draft order is compatible with the Convention rights,(c) modifications that the authority consider need to be made to secure that the draft order complies with the provision made by or under sections 61E(2), 61J and 61L,(d) modifications specifying a period under section 61L(2)(b) or (5), and(e) modifications for the purpose of correcting errors.
(7) The area in which the referendum is (or referendums are) to take place must, as a minimum, be the neighbourhood area to which the proposed order relates.
(8) If the authority consider it appropriate to do so, they may extend the area in which the referendum is (or referendums are) to take place to include other areas (whether or not those areas fall wholly or partly outside the authority's area).
(9) If the authority decide to extend the area in which the referendum is (or referendums are) to take place, they must publish a map of that area.
(10) In any case where the authority are not satisfied as mentioned in sub-paragraph (4), they must refuse the proposal."
"If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be)."
The result of the referendum in this case
"Do you wantLewes
District Council to use the Neighbourhood Plan for Newick Parish to help it decide planning applications in the neighbourhood area?"
The housing allocation within the NDP
The grounds of challenge
Grounds 1 and 3
"4. Screening the Protected Site
4.1 When producing a neighbourhood plan, one of the basic conditions is for it to be in general conformity with the strategic policies of the development plan. The Newick NDP is being produced in order to be in conformity with theLewes
District Core Strategy. At the time of writing this report, the Core Strategy is at an advanced stage of production and has recently undergone a period of representation on the proposed submission
version
of the document.
HRA on theLewes
District Core Strategy
4.2 Thus, when undertaking the screening assessment for the Newick NDP, consideration is made to the findings of the HRA on theLewes
District Core Strategy. That HRA assumed that 100 homes would be built in Newick by 2030.
4.3 Transport work was undertaken by East Sussex County Council for the Core Strategy's HRA. Such work revealed that development in the district, including development in Newick, was unlikely to lead to many additional trips on roads near the Ashdown Forest and consequently unlikely to increase significantly nitrogen deposition at the forest. Thus, the HRA noted that "…it has been determined, in consultation with Natural England, that the Core Strategy would not have a significant negative effect on the Ashdown Forest SAC/SPA in terms of nitrogen deposition either alone or in combination with other plans. Therefore mitigation or avoidance measures are not required."
4.4 The HRA also found that development within 7km of the Ashdown (within which most of Newick Parish lies) was likely to have a significant negative effect on the Ashdown Forest SAC/SPA in terms of recreational disturbance, unless mitigated against. Mitigation measures were introduced and thus the HRA noted that "as a result, the Core Strategy complies with the Habitats Regulations and does not require further assessment."
4.5 It is assumed that the Newick NDP will plan for the same amount of housing (100 homes) as tested in the HRA on the Core Strategy. It will also introduce a number of policies, covering a range of issues to deliver thevision
of the community.
The Screening Assessment
4.6 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 Newick NDP 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." (All emphasis as in original.)
"LIKELY SIGNIFICANT EFFECTS TO SITE (INCLUDING POTENTIAL 'IN-COMBINATION' IMPACTS)? |
The HRA for the ![]() ![]() The HRA for the ![]() ![]() |
"4.5 Having undertaken the screening, based on the information available to the District Council … at this point in time, it was not possible to determine that the Core Strategy would not cause a likely significant effect on … Ashdown Forest …. Thus, using the precautionary principle, it was necessary to continue the AA process for the [site]."
"Whilst there is no evidence to show that recreational disturbance is currently having an adverse impact on the integrity of the Ashdown Forest, it would need to be proved thatvisitor
numbers would not increase unduly as a result of new development within 7km from Ashdown Forest so as to have a negative impact on ground nesting birds and its habitat.
WithinLewes
District, only the
Village
of Newick and the northern part of Chailey Parish lie within 7km from Ashdown Forest. In this area, it is not anticipated that much development would occur as a result of the Core Strategy and thus, when looking solely at development in
Lewes
District, it is not thought that a significant effect to the site would occur. However, when considering the large amount of housing planned within 7km of the forest by neighbouring authorities (Wealden and Mid-Sussex District Councils), it may be that the combined or 'in combination' effect would be significant.
Thus, using the precautionary principle, the effect of increasing recreational pressure on the site would need to be examined on an individual basis and in combination with plans being produced (particularly Wealden District and Mid Sussex District Councils) through the next stage of the AA. This is as there is no current evidence available to prove that there would not be a negative effect."
"6.1 The previous section of this report identified that mitigation of new residential development within 7km of the Ashdown Forest was required as there was no evidence to suggest that there would not be significant negative effect alone and in combination, on the protected site by increasing recreational disturbance. Given that the Proposed Submission Core Strategy includes a figure of 100 residential units to be provided in Newick (Spatial Policy 2), it meant that the effect needed to be mitigated or alternative solutions found.
6.2 As a result of this finding, it was felt that a consistent approach across affected authorities affected by the 7km zone was appropriate. Given the EIP Inspector's acceptance of the evidence base and of Wealden District Council's approach to mitigate impacts, as well as the desire of local planning authorities in the area to have a collective approach, it is considered that some of the recommendations from Wealden District Council's Habitat Regulations Assessment were considered to be relevant to development inLewes
District too. Relevant recommendations are listed in table 5."
7.17 A number of measures were proposed to mitigate against the potential negative affects of development on the Ashdown Forest. To ensure that a consistent approach was applied across the 7km zone, the following measures align closely with the proposed by Wealden District Council:
1. Residential development within 7km of the Ashdown Forest that results in a net increase of one or more dwellings will be required to contribute to:
(a) the provision of Suitable Alternative Natural Greenspace (SANG) at the level of 8 hectares per additional 1,000 residents,
(b) the implementation of an Ashdown Forest Access Management Strategy,
(c) a programme of monitoring and research at Ashdown Forest
2. Any development leading to an increase of one or more dwellings within the 7km zone will be required to make a financial contribution to deliver SANG provision and to fund its long-term maintenance and management in order to offset the impact of new residential development on the Ashdown Forest.
3. SANG(s) will be provided at an appropriate scale, design and location in accordance with advice from Natural England. Thedelivery
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, development resulting in a net increase of one or more dwellings within the 7km zone will be resisted.
4. Any development leading to an increase of one or more dwellings within 7km of Ashdown Forest will be required to provide a financial contribution towards the implementation of an Ashdown Forest Access Management Strategy. Such a strategy will be progressed by the four affected authorities (Wealden District Council, Mid Sussex District Council, Tunbridge Wells Borough Council andLewes
District Council), Natural England and the Conservators of Ashdown Forest …."
"That work on identifying suitable SANG provision is progressed byLewes
District Council so that a site or sites can be allocated in a Development Management Policies Development Plan Document or a Neighbourhood Development Plan."
"SANG(s) will be provided at an appropriate scale, design and location in accordance with advice from Natural England. Thedelivery
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."
"… it is the 'in-combination' effects that have been assessed, and in light of this, it was not deemed necessary for the [NDP] HRA Screening Report to consider individual sites. Furthermore, Core Policy 10 of the Core Strategy and Policy HO1.7 of the [NDP] ensure that any new development proposed within the Ashdown Forest 7km zone in Newick Parish contributes to the provision of SANGS (and SAMMS) thus mitigating any potential for 'in combination' adverse effects on the Ashdown Forest SAC/SPA from recreational pressure. Therefore it was not necessary to know the exact location of the sites where growth will be allocated in order to carry out the [NDP] HRA. This position is consistent with the HRA assessment carried out for the Core Strategy, which is itself consistent with the HRAs carried out for neighbouring authorities with development potential within the Ashdown Forest 7km zone."
"Officers continue to work to identity a SANG that will have capacity to mitigate all proposed development in Newick. This includes working with neighbouring authorities to explore options for SANGS that will not only mitigate all proposed development in Newick, but also proposed development within the neighbouring district(s). Natural England has been involved inviewing
and approving the appropriateness of candidate sites and work is progressing to bring forward the necessary site. It is not appropriate at this stage to disclose the candidate sites as this may affect any ongoing commercial negotiations. The Council is confident of the ability to identify a SANG within a reasonable period of time to mitigate all development in Newick, as per the Council's commitment in the Core Strategy …. The District Council do not accept the allegation that there is no prospect of
delivery
of the [NDP] residential allocations HO2 to HO5 within the plan period for the Core Strategy (up to 2030). In fact, the District Council will be seeking to identify and deliver a SANG that will allow for residential schemes within the 7km area to be delivered within the first five years of the plan period, from the point of adoption (due for early 2016)."
(i) there can be no guarantee of the deliverability of the housing specified in the NDP because there is no SANG identified in the NDP or the emerging local plan and none in prospect;
(ii) the NDP (and the material underlying it) does not address whether the appropriate mitigation for the protected site (namely, SANG) can be "achieved in practice" and, accordingly, there is a breach of the 2010 Regulations.
"In my judgment, the important question in a case such as this is not whether mitigation measures were considered at the stage of [Core Strategy] in as much detail as the available information permitted, but whether there was sufficient information at that stage to enable the Council to be duly satisfied that the proposed mitigation could be achieved in practice. The mitigation formed an integral part of the assessment that the allocation of 2000 dwellings on [the relevant area] would have no adverse effect on the integrity of the SPA. The Council therefore needed to be satisfied as to the achievability of the mitigation in order to be satisfied that the proposed development would have no such adverse effect. As Sullivan J expressed the point in R (Hart District Council)v
Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin), [2008] P&CR 16, at paragraph 76, "the competent authority is required to consider whether the project, as a whole, including [mitigation] measures, if they are part of the project, is likely to have a significant effect on the SPA"[2]."
"I note that the Neighbourhood Plan 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 Suitable Alternative Natural Greenspace (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 Neighbourhood Plan 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 "H01.7 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 Suitable Alternative Natural Green Space (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 thatLewes
District Council is working towards the provision of SANGs and that this is recognised within the Neighbourhood Plan." (Emphasis as in original.)
"6. The Council is currently considering a number of options for SANG provision, including sites that lie within its administrative area as well as options outside which could act as suitable SANG to offset development withinLewes
District along with development within other district(s) that lie within the 7km radius of the Ashdown Forest. In this regard, the Council has written confirmation from Wealden District Council that it is willing to explore such an option within its district. I exhibit to this witness statement Wealden DC's letter dated 2 July 2015 …. Furthermore, the Council is continuing to explore options within its own area, in particular those that would be delivered by private developers and/or landowners. However, due to the stage of potential purchase of such sites, both within and outside of
Lewes
District, and in turn issues around commercial sensitivity; the Council is currently not in a position to disclose where such sites are located."
"The three major SANGs represent a proposed strategic approach across the three local planning authority areas to meet the overall combined effects of increased recreational pressures associated with the population which will eventually come to live in the substantial new housing to be built in those areas as the LDFs come to be adopted and then implemented. The substantial residential developments contemplated by the draft LDFs lie in the future. Similarly, the creation of the three parkland SANGs lies in the future. Relevant land for them will have to be acquired, including as necessary by use of compulsory purchase orders. Funding will have to be found to acquire the land for the SANGs. At present, there is uncertainty about how and when both the substantial residential developments contemplated by the draft LDFs and the setting up of the SANGs will take place."
"… The Inspector was lawfully entitled to take into account the proposed preventive safeguarding measures in respect of the SPA and SAC under the first limb of Article 6(3), for the purposes of giving a screening opinion to the effect that no "appropriate assessment" would be required under the second limb of Article 6(3), in the course of his consideration whether to grant planning permission."
"The Claimants contend that as the proposed allocations lie within the 7 kilometre zone they will not come forward as there is no SANG in place or a solution to the provision of the SANG. As has been stated earlier, District Council is committed to identifying a SANG as part of local plan part 2. District Council is of theview
that such an allocation is achievable and thus there will not be a long term embargo on development within the zone.
With this context it is therefore believed that the allocations are achievable and will come forward within the identified plan period of the [NDP]. However, local authorities are required to monitor thedelivery
of allocations and of housing numbers. Thus, if the [NDP] does not allocate enough sites to meet a housing target for Newick or if the District Council has evidence to show that the allocations will not be achieved in the planned period, District Council has the ability to allocate additional sites."
Ground 2
5.—(1) Subject to paragraphs (5) and (6) and regulation 7, where—
(a) the first formal preparatory act of a plan or programme is on or after 21st July 2004; and
(b) the plan or programme is of the description set out in either paragraph (2) or paragraph (3),
the responsible authority shall carry out, or secure the carrying out of, an environmental assessment, in accordance with Part 3 of these Regulations, during the preparation of that plan or programme and before its adoption or submission to the legislative procedure.
(2) The description is a plan or programme which—
(a) is prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use, and
(b) sets the framework for future development consent of projects listed in Annex I or II to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC.
…
(6) An environmental assessment need not be carried out—
(a) for a plan or programme of the description set out in paragraph (2) or (3) which determines the use of a small area at local level; or
(b) for a minor modification to a plan or programme of the description set out in either of those paragraphs,
unless it has been determined under regulation 9(1) that the plan, programme or modification, as the case may be, is likely to have significant environmental effects, or it is the subject of a direction under regulation 10(3)."
"9(1) The responsible authority shall determine whether or not a plan, programme or modification of a description referred to in–
(a) paragraph (4)(a) and (b) of regulation 5;
(b) paragraph (6)(a) of that regulation; or
(c) paragraph (6)(b) of that regulation,
is likely to have significant environmental effects.
(2) Before making a determination under paragraph (1) the responsible authority shall–
(a) take into account the criteria specified in Schedule 1 to these Regulations; and
(b) consult the consultation bodies.
(3) Where the responsible authority determines that the plan, programme or modification is unlikely to have significant environmental effects (and, accordingly, does not require an environmental assessment), it shall prepare a statement of its reasons for the determination."
(i) the screening out of the need for an SEA relied upon the emerging Local Plan process (including the mitigation mentioned in the emerging Local Plan process) which has not yet been completed and the Local Plan is not yet adopted;
(ii) the content of the screening opinion is "opaque, unclear and irrational" and not sufficiently clear to understand why the conclusion that no SEA was required has been reached;
(iii) the conclusion that there will not be a significant effect on the environment when all of the housing proposed in the NDP is in the 'Zone of Influence' (see paragraph 33 above) with the potential for a significant negative effect on Ashdown Forest without mitigation (thedelivery
of which "has not been considered and is uncertain") is Wednesbury unreasonable.
"Newick has no European Protected Sites within it, but it is close to Ashdown Forest. In terms of EU site protection designations, Ashdown Forest is both a Special Protection Area and a Special Area of Conversation. As a result, a protected zone has been set around it, encompassing all land within 7km of its boundary. Much of Newick lies within that zone and it has been agreed that Sustainable Alternative Natural Green Spaces (SANGS) must be developed before any new housing is permitted in the zone. It is understood thatLewes
District Council is working towards provision of such SANGS and will recoup their cost by charging the developers of all new housing."
2.2 On 1st October 2012,Lewes
District Council designated the Civil Parish of Newick as a Neighbourhood Area in order to allow us, the Parish Councillors of Newick, to lead the production of a Neighbourhood Development Plan with the support and input of the residents of the Parish.
2.3 The Neighbourhood Development Plan will conform with theLewes
District Joint Core Strategy, due for adoption in 2014, which sets out the strategic planning policy for the district until 2030. It is intended that our Neighbourhood Development Plan will supplement the Core Strategy, covering a number of different aspects relating to land use in the Parish including new housing, business development, recreation and protection of open spaces.
2.5 For their Joint Core Strategy,Lewes
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 Strategic Environmental Assessment Directive.
2.6 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 Strategic Environmental Assessment Directive. We have concluded that our Neighbourhood Development Plan would not have any significant environmental effect that has not been considered already inLewes
District Council's sustainability appraisal. As a result, we proposed to the statutory consultees that our sustainability appraisal be simple and appropriate for a local-level plan. None of the statutory consultees objected to this proposal.
Grounds 4 and 5
Ground 6
"… I consider that, at the top of the range identified, the figures agreed by the Councils represent the full, objectively assessed, needs (OAN) of the district for the plan period, including taking account of the need for affordable housing and "market signals", in respect of the present state of the housing market locally etc, as required by the NPPF.
Third, I accept that the agreed OAN figures in relation to new housing cannot be met in full in the district over the plan period. This is so, even at the lowest end of the range identified, without unacceptable consequences that would be contrary to the NPPF and PPG, taking into the account the National Park (NP), the flood risks locally and other significant constraints, including coastal erosion.
This conclusion is reinforced by the essentially common ground between the Councils, the HBF, the CPRE and others, including numerous Parish Councils and major house builders active in the locality, as represented at the hearings, on this matter.
I also acknowledge that, notwithstanding the overall compliance with the [Duty to Co-operate], there is no realistic prospect of any material help in achieving new housingdelivery
being received from adjoining or nearby Councils in the near future, pending further work on a sub-regional basis and a potential plan review.
However, despite the foregoing, I am not at all convinced that "no stone has been left unturned" by the Councils, in terms of seeking as many suitable and appropriate sites for new housing as possible that are realistically deliverable in sustainable locations across the plan area. This is evidenced in thevarious
iterations of the Strategic Housing Land Availability Assessment (SHLAA) and as put forward in representations to the examination in some cases.
In the light of the above, I cannot find sound a plan that is so far short of even the lowest end of the agreed OAN range and does not provide even enough new dwellings on an annual average basis to maintain the present levels of employment in the district. As a consequence, my initialview
is that the balance between the three elements of sustainable development, as set out in the NPPF, has not been properly struck in terms of the level of new housing in the plan in relation to the area's needs. This is particularly so for affordable housing, given the area's relatively strong housing market currently and the attractions of the district for in-migrants and retirees.
My preliminary conclusion is that the new housing provision in the plan has to go up to a minimum of 6,900 in total (from 5,790 as now), or at least 345 dwellings a year on average over the plan period. This is still only equivalent to zero employment growth across the district, but at least not "planning for failure" in economic terms …."
"… if the Old Malling Farm site inLewes
is allocated, I do not anticipate any need to materially alter the minimum indicative figures for new housing in these or other
villages
in the district."
"2.3 The Neighbourhood Development Plan will conform with theLewes
District Joint Core Strategy, due for adoption in 2014, which sets out the strategic planning policy for the district until 2030 …."
"Concern is raised with the approach of undertaking screening using information from a Local Plan, and its associated evidence base, which has yet to be independently examined."
"The content of the Foreword and theVision
Statement is generally interesting and helpful.
The second paragraph contains an error along with generally unnecessary information – it is not a requirement for neighbourhood plans to conform with emerging District-wide plans."
"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."
"Can a Neighbourhood Plan come forward before an up-to-date Local Plan is in place?
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 take a proactive and positive approach, working collaboratively with a qualifying body particularly sharing evidence and seeking to resolve any issues to ensure the draft neighbourhood plan has the greatest chance of success at independent examination.
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 Planning and Compulsory Purchase Act 2004 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."
"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 polices 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 polices for housing …."
(i) that, referring specifically to paragraphs 8(2)(a), (d) and (e) of Schedule 4B to the 1990 Act, "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" ([59]);
(ii) that the foregoing interpretation of those paragraphs is consistent with the statutory framework ([61]-[67]);
(iii) that the interpretation is also consistent with the BDW decision (see paragraph 7 above) ([68]-[69]);
(iv) that, although the Governmental guidance cannot aid statutory interpretation, there is "no inconsistency between the interpretation adopted in this case of the requirements of the basic conditions in paragraph 8(2) of Schedule 4B to the 1990 Act and the guidance contained in the Framework, properly interpreted, and read against the statutory background" ([70]-[78]).
"Although a neighbourhood plan must be in general conformity with the strategic policies of the local plan and should not provide for less development than is promoted by the local plan (paragraph 184 of the NPPF), these principles do not apply where a neighbourhood plan is progressed in advance of the adoption of any local plan. The absence of a local plan does not preclude the preparation and formal approval of a neighbourhood plan. The body responsible for a neighbourhood plan does not have the function of preparing strategic policies to meet assessed housing needs …."
"Mr. Honey [Counsel for the Secretary of State] emphasised those parts of the NPPF which attach importance to neighbourhood plans and planning (e.g. paragraphs 183 to 185). Paragraph 198 provides that "where a planning application conflicts with a neighbourhood plan that has been brought into force, planning permission should not normally be granted". However, the Secretary of State accepts through Mr. Honey, that paragraph 198 neither (a) gives enhanced status to neighbourhood plans as compared with other statutory development plans, nor (b) modifies the application of section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). Moreover, housing supply policies in neighbourhood plans are not exempted from the effect of paragraph 49 and the presumption in paragraph 14 of the NPPF …."
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Ground 8
"The Claimant wish (sic) to makevery
clear that the criticisms made below are not against Mr McGurk personally. He was appointed in accordance with the system set up by the Government, and it is the system which has been created which is the subject of the Claimant's criticism."
1. Mr McGurk is one of twenty NDP examiners, but he has been selected to examine around one quarter of all NDPs in England.
2. Mr McGurk had at the time of his appointment as the Examiner of the NDP, only ever approved NDPs, having found each one met the basic conditions subject to minor modifications
3. That he had at the time of his appointment conducted far more examinations than anyone else, and as noted approved each.
4. The only examiner to have found an NDP failed the basic conditions (prior to appointment of Mr McGurk) was not appointed for any other NDPs, and publicly stated that she felt her rejection of the Slaugham NDP had led to her not being selected for other cases.
5. Examiners are able, as Mr McGurk has done, to put their track record of approving onto a website, which is of course readily available to anyone with internet access. In Mr McGurk's case he provides copies of each of his Examiners reports on his website.
Conclusion
APPENDIX 1
*APPENDIX 2
APPENDIX 3
Note 1 Usually translated into the acronym ‘OAN’. [Back] Note 2 In Smyth v SSCLG and ors [2015] EWCA Civ 174, the Court of Appeal expressly approved the approach of Sullivan J. [Back]