Town and country planning – Development plan document – Core strategy – Local authority adopting core strategy with modifications recommended by planning inspector – Claimant shopping centre owner challenging designation of out of town retail park as designated shopping centre – Whether inspector entitled to modify DPD – Whether modified plan being incapable of protecting primacy of town centre – whether DPD lacking sustainability assessment – Whether claimant having been properly consulted – Claim dismissed
The claimant was the owner of the Arndale Centre in Eastbourne town centre. The interested party owned a retail park which stood well outside the town centre with retail facilities including warehouse-style shops. The first defendant local authority submitted a core strategy development plan document (DPD) to the second defendant secretary of state which designated the retail park as a district shopping centre (DSC). The first defendants subsequently adopted the plan subject to modifications recommended by the second defendant.
The designation of the retail park as a DSC gave certain planning advantages which the claimant argued would endanger the continued primacy of the town centre itself. Therefore the claimant applied under section 113 of the Planning and Compulsory Purchase Act 2004 for an order quashing the core strategy insofar as it designated the retail park as a DSC.
The claimant contended that (i) the inspector was not entitled by section 20 of the 2004 Act to modify the DPD submitted to her in the way that she had; (ii) the plan as modified by the inspector was defective in that it was incapable of protecting the primacy of the town centre in the manner envisaged by the inspector; (iii) the inspector was not entitled to recommend adoption of the plan with her recommended modifications, because there had been no sustainability assessment; and (iv) the modifications recommended by the inspector, and their effect of the plan as a whole, had not been the subject of proper consultation with the claimant.
Held: The claim was dismissed.
(1) Soundness was at the heart of the examination of the DPD under section 20 and was a matter of planning judgment, although the process was closely regulated. The examination was of the DPD by the inspector exercising a reviewing jurisdiction. The question was whether, in all the circumstances, it would be reasonable to conclude that the document was sound, in which case, subject to the other statutory requirements, the inspector had to recommend that the document was adopted. If not, the inspector had to recommend non-adoption which precluded the authority from adopting it: sections 20(7), (7A) and 23(4).
The inspector’s own original planning judgment was to be deployed only if she took the view that it would not be reasonable to conclude that the submitted document was sound; and that the local planning authority had asked for modifications to be recommended. In those circumstances the inspector was required to recommend modifications that would make it sound: section 20(7B) and (7C). The inspector’s duty was to do only what was necessary in order to modify the document into one that was in her own judgment sound. The identification of the submitted document was crucial. There could not be any restriction on what modifications the inspector might adopt, given her obligation under section 20(7C) to do what was necessary by way of modification on order to make the document sound.
In the present case, it was clear from the correspondence, and from the statutory scheme, that the inspector had correctly identified her task. Because of the inspector’s statutory duty it was doubtful whether the defendants could restrict the ambit of her consideration of necessary modifications once the section 20(7C) process was under way. In any event, it was clear that the first defendants had intended the inspector to consider whatever modifications she thought necessary for the purpose.
(2) There could be no doubt that the inspector appreciated the risk to the town centre. Paragraph 24 of the national planning policy framework (NPPF) required a sequential test in the case of applications for town centre use other than in designated centres. The inspector was concerned with a range of issues in reference to the town as a whole and concluded that the inclusion of the retail park as a DSC was consistent with the defendants’ neighbourhood and strategic goals for the area. To that extent she had been entitled to conclude that the positive case for designation as a DSC had been made out as that was purely a matter of planning judgment and the defendants had been entitled to act on it by adopting the core strategy as modified.
(3) As regards the requirement for a sustainability assessment (SA), there had to be an assessment of reasonable alternatives to the chosen option, so that there could be a reasoned evaluative process of the environmental impact of the proposal, although in the present case there was no dispute about what alternatives ought to be considered. The reasons for the rejection of alternatives might be found in a combination of documents, provided that they together fulfilled the purpose of requiring an SA.
Not every new proposal required a new assessment. On the evidence in the present case, the inspector had clearly been entitled to say that the choice whether to designate the retail park or not had been the subject of SAs. The lack of an SA specifically considering the submitted document as modified was no bar to the inspector’s recommendation or the defendants’ adoption of the strategy: Save Historic Newmarket v Forest Heath District Council [2011] EWHC 606 (Admin); [2011] PLSCS 88, Heard v Broadland District Council [2012] EWHC 344 (Admin); [2012] PLSCS 51 and R (on the application of Buckinghamshire County Council) v Secretary of State for Transport [2013] EWHC 481 (Admin); [2013] PLSCS 78 considered.
(4) There was no legal requirement to notify the claimant individually that a consultation process was running and there had been no express promise to do so. Although there had been a great deal of correspondence between the claimant and the defendants, including in relation to previous consultations, there was nothing to support a view that the claimant had a legitimate expectation of being individually notified of future consultations, giving rise to a claim that the consultation process would be invalidated by failure to give such notice. The claimant was not shown to have been denied the opportunity to make representations; nor had it shown that it had been prejudiced by the failure to send an individual notice, bearing in mind the publicity given to the consultation.
Christopher Boyle and Guy Williams (instructed by Lawrence Graham LLP) appeared for the claimant; Robert Walton (instructed by DMH Stallard LLP) appeared for the first defendants; Carrie Patry (instructed by the Treasury Solicitor) appeared for the second defendant; James Pereira (instructed by Stephenson Harwood LLP) appeared for the interest party.
Eileen O’Grady, barrister
