DLA Delivery Ltd, R (On the Application Of) v Lewes District Council

A neighbourhood development plan may be made before an up-to-date local plan has been adopted. It must be in general conformity with the strategic policies in the development plan currently in force, but it is not tested against an emerging local plan. Evidence informing that emerging plan may nevertheless be relevant.

Where mitigation is relied upon to screen out likely significant effects on a protected European site, the decision-maker must have sufficient information to be satisfied that the mitigation can be achieved in practice. The issue is fact- and context-specific. Future provision may suffice where the local planning authority has a bona fide and reasonably supported belief that it will be delivered within the plan period.

DLA Delivery Ltd sought judicial review of Lewes District Council’s decision to put the Newick Neighbourhood Development Plan to referendum. The plan allocated housing sites within seven kilometres of Ashdown Forest, a protected European site, while relying on future Suitable Alternative Natural Greenspace and related management measures as mitigation.

The claimant challenged the habitats assessment, environmental assessment screening, housing-site selection, conformity with the development plan, and the independence of the examiner. Supperstone J directed a rolled-up hearing and granted permission on the arguable grounds other than Ground 8. The central issues were whether the plan could proceed before adoption of the emerging local plan and whether the mitigation evidence was legally sufficient.

1. Outcome. The claim for judicial review failed. None of the grounds of challenge was made out.
2. Habitats protection. The Habitats Regulations required an appropriate assessment where a land-use plan was likely to have a significant effect on a European site. Where mitigation was relied upon, the relevant question was whether there was sufficient information to satisfy the decision-maker that the mitigation could be achieved in practice. The issue was fact- and context-specific.
3. The absence of an identified SANG did not invalidate the plan. The Council was entitled to rely on its commitment and continuing work to secure SANG and SAMMS provision. The examiner was entitled to accept that position, particularly since there was no substantive evidence that delivery was impossible. The court was not deciding whether SANG would in fact be delivered, but whether reliance on the Council’s belief was legally sustainable at that stage.
4. Future mitigation, even with uncertainty, could be sufficient. If the anticipated mitigation failed, that would become a material consideration in later planning decisions, and alternative housing sites could be considered.
5. Emerging local plan. An NDP could lawfully be made before the relevant local plan was adopted. The court agreed with R (Gladman Developments Limited) v Aylesbury Vale District Council [2014] EWHC 4323 (Admin). The NDP had to conform with strategic policies in the development plan in force, but could use the reasoning and evidence informing an emerging plan.
6. The examiner’s role was limited to the statutory basic conditions, but the examiner still had to give reasons. The reasons were subject to the ordinary South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 standard. The alleged systemic appearance of bias was not arguable.

This was a first-instance judicial review. Supperstone J directed a rolled-up hearing and granted permission on the arguable grounds other than Ground 8. Mr Justice Foskett treated the hearing as substantially the substantive hearing and dismissed the claim.