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

A neighbourhood development plan may allocate land for housing although the adopted development plan contains no current strategic housing policy. Paragraph 8(2)(e) of Schedule 4B to the Town and Country Planning Act 1990 requires only general conformity with relevant strategic policies that actually exist.

Habitats and strategic environmental assessment screening conclusions are matters of planning judgment, reviewable on public law grounds. Proposed mitigation may be considered if the authority is satisfied that it can be achieved in practice. Deficient reasons do not invariably require relief. The court may withhold a remedy where rights have effectively been enjoyed, no substantial prejudice has arisen and the same substantive outcome is inevitable.

DLA Delivery Ltd challenged Lewes District Council’s decision to allow the Newick Neighbourhood Plan to proceed to a referendum. The Administrative Court dismissed its judicial review claim in [2015] EWHC 2311 (Admin).

The appeal concerned five issues: general conformity with the strategic policies of the development plan; compliance with habitats assessment requirements; housing deliverability; strategic environmental assessment; and whether the examiner was independent or apparently biased. The principal factual concern was whether suitable alternative natural greenspace would be available to mitigate the effect of housing within seven kilometres of the Ashdown Forest protected sites.

1. Appeal dismissed. Paragraph 8(2)(e) of Schedule 4B to the Town and Country Planning Act 1990 does not require a neighbourhood development plan to await an up-to-date local plan. It requires general conformity only with relevant strategic policies contained in the adopted development plan. A neighbourhood plan may therefore allocate housing where no relevant strategic policy exists or where the adopted strategy relates to an expired, non-overlapping plan period. Sufficient conformity is a matter of fact and planning judgment.

2. The council and examiner lawfully treated suitable alternative natural greenspace as mitigation when screening under article 6(3) of the Habitats Directive and regulation 102 of the Conservation of Habitats and Species Regulations 2010. In a plan-making process it was unnecessary to identify the precise mitigation sites. The examiner could conclude that mitigation was achievable in practice and could take account of the absence of substantive evidence that it could not be delivered.

   The examiner should, however, have explained more fully why suitable natural greenspace would be provided promptly despite the lack of positive evidence identifying particular sites. That deficiency in reasons did not make his substantive planning judgment irrational.

3. The housing allocations had not been prepared without regard to deliverability or national housing policy. The plan process and examiner’s report addressed the availability of allocated sites, mitigation and the delivery of sustainable development.

4. The strategic environmental assessment screening decision addressed the statutory question, consulted the prescribed bodies and considered every Schedule 1 criterion. Although parts of the supporting analysis were erroneous or sparse, the substantive conclusion was within the bounds of reasonable planning judgment. The inadequate statement of reasons nevertheless breached regulation 9(3) of the Environmental Assessment of Plans and Programmes Regulations 2004 and regulation 15(1)(e)(ii) of the Neighbourhood Planning (General) Regulations 2012.

5. Relief was withheld for both reasons defects. The protected procedural rights had in practice been enjoyed, no substantial prejudice was shown, and a different substantive outcome was inconceivable. Quashing the plan would instead cause delay, administrative prejudice and uncertainty for the local community.

6. The statutory selection of the examiner by the local authority, with the qualifying body’s consent, neither compromised his independence nor created apparent bias. His previous record of finding plans compliant did not alter that conclusion.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2017] EWCA Civ 58 . The court identified defects in the examiner’s and SEA screening reasons but withheld relief.
2. Administrative Court, Planning Court: Foskett J dismissed the judicial review claim in [2015] EWHC 2311 (Admin) .