Legal Viewpoint: Tide turns in homes battle with neighbourhood plans

In May 2015, in the week before the general election, three ministerial decisions were quashed by the High Court.

The first, on which the secretary of state consented to judgment, concerned an appeal for 100 houses at Rolleston-on-Dove in Staffordshire. The site had been allocated in the borough council’s draft local plan for housing, but the parish council sought to protect it as local green space through its draft neighbourhood development plan (NDP).

An outline planning application had been refused due to the scheme’s conflict with the NDP. However, the NDP examiner had advised that the local green space allocation failed the basic conditions for NDPs, as did the parish’s attempt to block any development outside the village’s settlement boundary. Despite these findings, communities secretary Eric Pickles dismissed the developer’s appeal in December 2014 because of the NDP conflict, against his inspector’s recommendation.

That decision was quashed in May 2015, on the basis that Pickles had ignored the draft local plan allocation. Yet redetermination of the appeal (DCS Number 200-005-767) inexplicably took a further 18 months, creating a total ministerial delay of almost three years since the case was recovered in March 2014. The local plan was formally adopted in October 2015, but ministers still refused to issue the decision or even set a timetable for making it.

But the tide may now have turned. Shortly after the Rolleston redetermination, secretary of state Sahid Javid allowed an appeal for 50 houses at Newick, East Sussex (DCS Number 200-005-811). The decision to make the Newick NDP was considered in DLA Delivery Ltd v Lewes District Council and Newick Parish Council, heard in the High Court in July 2015. The claim related to a failure to properly consider the requirements of the European habitats and strategic environmental assessment directives. It also alleged that the NDP should not proceed ahead of the core strategy setting housing numbers. The challenge was dismissed in August 2015, but Lord Justice Lindblom granted permission to appeal and the case went to the Court of Appeal in November.

The neighbourhood plan sought to allocate 101 houses to meet a core strategy requirement for a minimum of 100 houses at Newick. Although the site was not one of the allocations, the appeal was allowed, adding 50 per cent to planned housing levels in the parish. The decision was due to be issued the week before the Court of Appeal hearing and the judges asked about this. The court has been informed of the appeal outcome; its ruling on the legal challenge is now awaited.

Christopher Young is a barrister at No5 Chambers

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