Town and country planning – Allocation plan – Consultation process – Claimant applying for order quashing allocation plan of first defendant local planning authority alleging serious flaws in consultation – Whether claimant establishing flaws in public consultation when preparing development plan document – Application dismissed
The claimant was a resident of Rayleigh, Essex, which was in the administrative area of the first defendant local planning authority. By an application, under section 113 of the Planning and Compulsory Purchase Act 2004, she challenged the defendants’ adoption of a district allocation plan. The claimant had objected to the plan during its preparation and took part in the examination held by an inspector appointed by the second defendant secretary of state.
The claimant subsequently applied for an order to quash the plan, at least in part, on the basis that there were serious flaws in the first defendants’ notification and consultation during the plan-making process, and also before that, in the preparation of the district core strategy, in breach of the relevant statutory requirements for plan-making and the regime for strategic environmental assessment (SEA). The first defendants resisted the application maintaining that the plan process, at every stage, had been transparent, inclusive and fair. The first defendants said that they had complied with all the relevant requirements of the consultation. In his acknowledgement of service, the second defendant said that he intended to resist the application but later decided to take no further part in the proceedings.
The main issues for the court were: (i) whether the conclusions of the inspector that, in preparing the allocations plan, the first defendants had complied with their statement of community involvement and thus discharged their duty under section 19(3) of the 2004 Act, had been irrational; (ii) whether, in preparing the allocation plan, the first defendants had failed to comply with article 6 of European Parliament and Council Directive (EC) 2001/42 (the SEA directive) and with regulation 13 of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633) (the SEA regulations); and (iii) if the first defendants had failed to comply with article 6 and regulation 13(2) when preparing their core strategy, whether the inspector ought to have acted to make good any harm caused by those failures, having regard to regulations 8(4) and (5) of the Town and Country Planning (Local Planning) (England) Regulations 2012, SI 2012/767 (the 2012 Regulations) relating to the consistency of a local plan with the adopted development plan.
Held: The application was dismissed.
(1) The duty imposed on a local authority by section 19(3) of the 2004 Act was, in effect, to do no more than act in accordance with its own statement of community involvement. It did not require the authority to satisfy either itself or the inspector conducting the examination of its draft plan that all the residents were in fact aware of the draft plan at any particular stage in its preparation; nor did it require, or permit, the inspector to apply objectives or obligations beyond those contained in the statement of community involvement itself. The question for him under section 20(5)(a) was simply whether the authority had complied with the statement of community involvement as it was, not as it might have been. The essential purpose of the council’s statement of community involvement was to set in place a workable strategy for consultation, for use both in plan-making and in development control. It was framed in deliberately broad terms and recognised the need for flexibility. In the context of plan-making it allowed for both a sequential and an iterative exercise, involving a hierarchy of development plan documents and the preparation of successive drafts of each. It did not prevent the authority from consulting in different ways on different plans. The concept of having to “comply” with the statement of community involvement, as section 19(3) required, had to be seen in that light.
Regulation 18 of the 2012 regulations afforded scope for the authority to exercise its own judgment in deciding whom it was going to consult on a draft plan, and how. Paragraph (2)(c) allowed the authority to decide for itself which residents and businesses should be invited to make representations on a draft plan in the particular circumstances of the process in hand, bearing in mind the stage the process has reached. On the evidence, the first defendants had not breached any of the requirements of section 19(3) and regulation 18 but had complied with them all. The inspector’s conclusions to that effect had been reasonable and correct. The inspector had asked himself the right question and his conclusions had been unassailable.
2) In purporting to discharge their duty to consult the public, under article 6 of the SEA directive, the first defendants had relied on their website, not only as the sole means of inviting the general public to comment on the draft plan and sustainability appraisal, but also as the only means of making known that that was what they were doing. Only a very small number of individual members of the public had been consulted directly, giving no effective opportunity to express opinions on the documents as required by article 6. The first defendants could not properly consult the general public under the SEA regulations in that way. Their failure effectively to notify the public that they had been using their website to consult them on the draft allocations plan and their failure to use an extra means of consultation, extending the consultation to people who had been unable to use the internet, had amounted to a breach of article 6 of the directive and regulation 13 of the SEA Regulations. The first defendants had erred in failing to announce and carry out their consultation on the draft plan, together with the sustainability appraisal, by some means which would not have excluded those without access to the internet. The first defendants’ failure to do those two things had put them in breach of the relevant provisions.
(3) The claimant’s submissions concerning the core strategy were misconceived and could not be entertained under section 113 of the 2004 Act since they offended the principle of administrative certainty underlying section 113(2). There was nothing the court could do to the core strategy itself and the inspector in the allocations plan process would have been straying too far beyond the sphere of his confidence if he had tried to address concerns raised before him about the strategic environmental assessment undertaken by the first defendants: Manydown Company Ltd v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin); [2012] PLSCS 86 distinguished.
(4) The remedies available under section 113 of the 2004 Act were discretionary. This was not a case in which any real prejudice had arisen either to the interests of the claimant or anyone else and there was no basis upon which the court could realistically conclude that outcome of the plan-making process would have been other than the same as it had been if the breach of the SEA directive had not occurred. In all the circumstances, the balance of prejudice was firmly tipped against relief being granted: Walton v Scottish Ministers [2012] UKSC 44 applied; Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603; [2000] 3 PLR 111 distinguished.
Jenny Wigley (instructed by Richard Buxton Solicitors) appeared for the claimant; Juan Lopez (instructed by Rochford District Council) appeared for the first defendants; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
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