There Goes The Neighbourhood? Recent Challenges To NDPs

There is still significant legal debate as to what is the proper scope of neighbourhood development plans. This has resulted in a series of cases in which the parish council or neighbourhood forum that has promoted the relevant NDP sits on the sidelines (due to lack of resources) as the borough or district council which has been required to make it finds itself embroiled in significant legal proceedings. 
Can an NDP be made in advance of an up to date local plan?

This question is critical because, if so, there is significant freedom for the NDP to set the local policy agenda on issues (such as housing numbers in the neighbourhood) which might be thought to be more properly the domain of the local plan (whereas if there is an adopted local plan there is the statutory constraint that the NDP must be in “general conformity” with its “strategic policies”). 

To date High Court judges have taken the view that the answer is “yes” but this will come before the Court of Appeal for the first time this coming week, when the claimant’s appeal from the ruling of Foskett J in R (DLA Delivery) v Lewes District Council  (31 July 2015) is heard on 15 and 16 November 2016. Foskett J had taken an equivalent approach to that of Lewis J in R (Gladman Developments Limited) v Aylesbury Vale District Council  (18 December 2014) and Holgate J in Woodcock Holdings v Secretary of State  (1 May 2015). 
Can an NDP require new dwellings to be occupied as a “principal residence”?
This was the main issue before Hickinbottom J (promoted to the Court of Appeal since the hearing) in R (RLT Built Environment Limited) v Cornwall Council  (10 November 2016). This of course concerned the St Ives Neighbourhood Plan’s proposed ban on new dwellings being used as second homes. 
As is so often the case in NDP challenges (see below for more of this) the first line of attack was as to the adequacy of the strategic environmental assessment that had been carried out. The claimant, a local developer, claimed that increasing the amount of market housing for local people to buy was a “reasonable alternative” that should have been assessed. The judge disagreed – as an alternative it was an “obvious non-starter” as it did not achieve the objective of the policy which was to reduce the number of second homes in the area.  
The second line of attack was that the policy would amount to an unjustified interference with the right to a home in Article 8 of the European Convention on Human Rights. The judge held that whilst the right might in theory be interfered with if a resident had to leave the area due to changes in personal circumstances, the interference was proportionate and therefore acceptable. The LPA would also be able to take personal circumstances into account in deciding whether or not to take planning enforcement action. 
Whilst much turned on the local circumstances of the second home honeypot that is St Ives, can one extrapolate to other areas under pressure from second homes, such as parts of London?
When will a plan be quashed on the basis of inadequate strategic environment assessment?
There have been many challenges, whether to decisions to screen out SEA (eg R (Larkfleet Homes Limited) v Rutland County Council  (Court of Appeal, 17 June 2015)) or to the adequacy of the SEA process (most recently in the Cornwall case but before that in for instance in BDW Trading Limited v Cheshire West and Chester Borough Council  (Supperstone J, 9 May 2014)). Until last month, I only knew of one example of an NDP being quashed on the basis of inadequate assessment: the Haddenham Neighbourhood Plan, where Aylesbury Vale District Council consented to judgment  in March 2016 (to the chagrin of the parish council that had promoted the plan). 
So R (Stonegate Homes Limited) v Horsham District Council  (Patterson J, 13 October 2016) is quite something: the Henfield Neighbourhood Plan was quashed by the High Court following a contested hearing on 4 October (Mark Lowe QC acted for the successful claimant, who incidentally also acted for the successful defendant in the Cornwall case two days later on 6 October). The plan favoured residential development to the east of the settlement and, relying on perceived problems with the local road system, no assessment was carried out of the possibility of development to the west, despite a planning appeal having been allowed to the west and a highways reason for refusal having been withdrawn by the LPA following agreement between the appellant and the county council. The plan was quashed on the basis of a flawed assessment of reasonable alternatives within the SEA process as well as on the basis that there was no evidential basis for the examiner of the plan ruling out locations to the west or for the LPA to conclude that the plan met EU law requirements.  
The case is an encouraging example of the SEA Directive fulfilling a necessary role in providing a safeguard against loose or lazy thinking, against the background of a process where examination can be light touch (to put it charitably) and where the legislation has as many holes as a Cornish trawler net when it comes to NDPs, minnows of our plan led system. 

Simon Ricketts 12.11.16
Personal views, et cetera

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