Clark dismisses appeal for development in neighbourhood planning area as two earlier decisions are challenged

The decision comes shortly after the government decided not to contest a challenge to Clark's refusal of permission for a scheme in a Gloucestershire neighbourhood planning area and the Court of Appeal agreed to hear a challenge to an East Sussex neighbourhood plan.

Developer Sunley Estates Ltd was refused permission in December 2014 to build 120 homes, shops, sports facilities, a community centre and public open space on two fields outside the development boundary of the village of Hambrook. The developer's subsequent appeal was recovered by the communities secretary because it involved more than 10 homes in an area with an emerging neighbourhood plan.

Chichester District Council adopted a local plan in July 2015, allocating 'service villages' including Hambrook as being suitable for "small scale housing developments" and stating an indicative need for 25 new dwellings in the parish of Chidham and Hambrook. By the time a planning inspector heard the developer's appeal, the identified housing need had already been met and exceeded, with planning permissions granted for an additional 86 houses.

A decision letter (52-page / 476 KB PDF) on behalf of the communities secretary said allowing the proposed development of 120 homes would not be in accordance with the local development plan. The Council was able to demonstrate a five-year supply of land for housing development and Clark gave substantial weight to conflict with policies setting the settlement hierarchy and requiring developments to be in keeping with local character.

The communities secretary said granting planning permission would also "be at odds with the shared neighbourhood planning vision" in the emerging Chidham and Hambrook Neighbourhood Plan (NP). By the time of Clark's decision, the NP had been examined and recommended for referendum, subject to modifications. The NP did not allocate any sites for housing other than those which already had planning permission. Clark gave moderate weight to the conflict with the NP and said granting permission for the scheme would "fundamentally undermine confidence in the neighbourhood planning process".

The decision came just days after the government decided to consent to judgment in a High Court challenge against Clark's decision in December to refuse permission for a 200-home scheme in the Gloucestershire town of Lydney.

Developer Allaston Developments Ltd had been given permission to argue in the High Court that Clark failed properly to assess the emerging Lydney Neighbourhood Plan and the emerging Allocations Publication Plan. The developer said Clark should have considered the stage of preparation of both plans; the extent of unresolved objections; and the plans' consistency with the National Planning Policy Framework before deciding how much weight to give them in the planning balance. The developer also argued that the benefits of the proposal had not been properly assessed.

A further challenge to a neighbourhood planning decision from the communities secretary has been given permission to proceed to the Court of Appeal. The Newick Neighbourhood Development Plan (NNDP) (36-page / 4.4 MB PDF) makes allocations for housing development in the East Sussex village of Newick up to 2030. Developer DLA Delivery argues that the NNDP should not be allowed to determine the number or location of new homes in the absence of an up to date local plan.

The developer has said the NNDP proceeded on the basis of its general conformity with the 2003 Lewes District Plan, which only dealt with housing needs up to 2011 and was based on evidence that is now out of date. It argues that the 'general conformity' requirement in the National Planning Policy Framework is intended to ensure local planning documents have proper regard to local development needs: with matters not fully addressed in a neighbourhood plan, such as the objectively assessed housing need, being accounted for by its alignment with an up to date local plan dealing with those matters.

The developer has also been granted leave to argue that plan making authorities should not be allowed to choose which Examiner considers their neighbourhood development plan and to argue six grounds mostly relating to the application of European law.

Planning expert Jamie Lockerbie of Pinsent Masons, the law firm behind Out-Law.com said: "These decisions demonstrate the importance and complexity of neighbourhood planning. Developers with sites in areas that are subject to neighbourhood plans, whether adopted or emerging, should pay careful attention to the relevant plan and its policies. Case law has established that a neighbourhood plan can come forward ahead of an up to date local plan and it can contain strategic policies such as site allocations, however, in either case the plan must have a sufficiently robust evidence base in support and this is frequently where neighbourhood planning groups come unstuck."