Clark to decide on planning appeal for site not allocated in East Sussex neighbourhood plan

In February 2015, Lewes District Council refused an application for outline permission to build up to 63 homes on farmland to the south west of the village of Newick.  An appeal will now be heard by Clark rather than the Planning Inspectorate under the communities secretary's power to 'recover' an appeal.

The application site was located just outside the development boundary set in saved policies of the Lewes District Local Plan 2003 (LP). The site was also outside the development boundary proposed in the Lewes Joint Core Strategy (JCS), which had not yet been tested at examination in public at the time of the decision, and was not allocated for development in the emerging Newick Neighbourhood Plan (NP).

Being unable to demonstrate a five-year supply of housing land, the Council had considered that the housing policies in the LP were not up-to-date and could not be used to determine the application. The Council gave only limited to weight to the policies of the JCS, given its early stage and the number of unresolved objections, and concluded that they did not outweigh the presumption in favour of sustainable development.

However, the Council's report on the application (22-page / 1.2 MB PDF) said allowing the development "would clearly have the effect of predetermining the scale and location of new housing development in the emerging NP".

An examiner had confirmed in December 2014 that the NP was sound and should proceed to public referendum. The Council gave significant weight to its policies, which allocated enough land in the north east of Newick to build the 100 new homes considered to be needed in the village by 2030.

According to a report from Planning Resource, the developer's appeal against the refusal has been recovered by communities secretary Greg Clark because it involves a development of more than 10 homes in an area with a neighbourhood plan.

The NP (36-page / 4.4 MB PDF) became part of the development plan for Newick in July after 89% of participants in the local referendum  voted in favour of its policies being used to help decide planning applications. The JCS has also been adopted, with a development boundary that still excludes the appeal site, since the Council refused the application.

Planning expert Lucy Close of Pinsent Masons, the law firm behind Out-Law.com said: "Clark’s decision to recover this appeal comes in the context of an on-going legal challenge to quash the same neighbourhood plan by the same developer, DLA Delivery."

"Having lost in the High Court, this developer now has permission to argue in the Court of Appeal that the NP should not be allowed to determine the number or location of new homes in the absence of an up-to-date local plan and plan making authorities should not be allowed to choose which examiner considers their neighbourhood development plan, amongst other grounds relating to the application of European law," said Close. "This appeal is still outstanding."

"The Court of Appeal case is clearly relevant to the background of the appeal Clark has recovered, as the problem for the developer is that their site is not allocated," said Close.

"The decision to recover this appeal and the on-going legal challenge to the NP itself show again that neighbouring planning is an area full of pitfalls and one for developers to tread carefully for where there are both current and emerging neighbourhood plans. The developer here may argue that this development actually is not contrary to the NP as this site can sit alongside others that are allocated - we will need to wait and see if the Court of Appeal agrees or not. I would expect a decision from Clark to only be released once the Court of Appeal has made its decision as to whether or not to quash the NP," Close said.