Town and country planning — Neighbourhood plan — Defendant local authority holding referendum in respect of draft neighbourhood plan — Majority vote endorsing plan — Claimants challenging decision — Whether defendants conducting proper sustainability assessment to comply with EC Directive — Whether defendants complying with basis conditions of neighbourhood planning regulations – Whether defendants providing evidential basis and proper reasons for retaining policy — Whether defendants’ examiner showing bias – Application dismissed
The claimants and the second interested party were national house building companies with substantial commercial interests in the North West of England, in particular Cheshire West. They had each applied for planning permission in respect of three green-field sites on the edge of Tattenhall to build 137, 68 and 110 homes respectively. Each application was recommended for approval but refused by the defendant local authority. Each decision was appealed, pursuant to section 78 of the Town and Country Planning Act 1990. The decision from a combined public inquiry in respect of those appeals was pending.
In September 2013, the executive committee of the defendants agreed that the draft neighbourhood plan, as amended to take account of the examiner’s recommendations, should be put to a referendum. The plan was endorsed by a majority. The plan stated that large scale, inappropriate development along existing village boundaries would not be supported by the community and suggested that future development should be limited to housing groups of no more than 30. If the plan was adopted, it would comprise part of the development plan for that part of the borough to which the claimants’ applications related for the purposes of section 36 of the Planning and Compulsory Purchase Act 2004. The first interested party was the parish council which had helped to prepare and promote the plan.
The claimants challenged the decision to put the plan to a referendum contending that: (i) the defendants had failed to properly comply with Directive (EC) 2001/42 (the Strategic Environmental Assessment (SEA) Directive) in its sustainability assessment; (ii) the defendants were in breach of their duty to ensure that the plan met the basic conditions of Schedule 3 to the Neighbourhood Planning (General) Regulations 2012 (SI 2012/637) and by retaining policy 1, enabling managed housing growth, which had been introduced without sufficient evidence and retained without providing proper reasons; and (iii) the examiner had been biased, as he was a director of a company that was a commercial rival to the claimants.
Held: The application was dismissed.
(1) The question whether there was general conformity between plans was a matter of degree and of planning judgment. As the issue raised by the claimants in the present case was not whether a SEA/sustainability appraisal was produced but whether it adequately addressed the suitable alternatives, the question was whether the examiner’s conclusion that the plan was compatible with EU obligations was also a matter of planning judgment. The level of consideration of alternatives in the sustainability assessment had been sufficient to meet the requirements of the SEA Directive and the 2012 Regulations and no other options-testing was reasonably required. The plan had been supported by a basic conditions statement which set out how the plan complied with the basic conditions which included a section on compatibility with EU Regulations and the conclusion that the plan was compliant with EU obligations. Accordingly, the first defendants had properly complied with the SEA Directive: Persimmon Homes (Thames Valley) Ltd v Taylor Woodrow Homes Ltd [2006] 1 WLR 334 applied.
(2) There had been no failure on the part of the defendants to meet the basic conditions in Schedule 3 to the 2012 Regulations. Further, there had been a proper evidential basis for retaining policy 1, which had been introduced by the defendants after due consideration. The reasons for retention of that policy were adequately set out in the plan, the basic conditions statement and the examiner’s report and the criticisms made by the claimants failed to appreciate the limited role of the examiner which was to assess whether the basic conditions had been met. The examiner had considered those conditions and had been entitled, on the evidence, to conclude that policy 1 had regard to national policy and contributed to the achievement of sustainable development. Further, the only statutory requirement was that the neighbourhood plan as a whole should be in general conformity with the adopted development plan as a whole. Whether or not there was any tension between one policy in the neighbourhood plan and one element of the eventual emerging local plan was not for the examiner to determine.
(3) As regards the examiner’s alleged bias, the question was whether the fair-minded and informed observer, adopting a balanced approach and having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The material factual matrix needed to be considered. In the present context the state of knowledge of the fair minded observer had to include an awareness of the role of the neighbourhood plan in the planning process, the function of the examiner in relation to the neighbourhood plan, the nature of the interest that was alleged to create the bias, and some knowledge of the geographical relationship between the two sites and the market. The outcome of the neighbourhood plan process would have no effect upon the eventual content of the local plan as regards the borough-wide need for and approach to development or the contribution that the City of Chester should make to meeting such needs. Moreover the plan did not limit the eventual amount of development at Tattenhall. In all the circumstances, a fair-minded and informed observer, having considered the relevant facts, would not conclude that there had been a real possibility that the examiner had been biased: Porter v Magill [2002] UKHL 67; [2002] AC 357 and Lawal v Northern Spirit Ltd [2003] UKHL 35; [2003] ICR 856 applied.
Paul G Tucker QC and Giles Cannock (instructed by Brabners LLP) appeared for the claimants; Stephen Sauvain QC and Martin Carter (instructed by Cheshire West & Chester Borough Council Legal Services) appeared for the defendants
Eileen O’Grady, barrister
