Town and country planning – Neighbourhood development plan – Independent examiner – Town council promoting draft neighbourhood development plan – Examiner concluding “basic conditions” for lawfulness being met and plan “in general conformity” with strategic policies of development plan – Defendant local authority voting for making of plan – Claimants applying for judicial review – Whether examiner’s conclusions being irrational – Whether examiner giving adequate reasons for conclusions – Application dismissed
The claimants were housing developers who had interests in land at lower Weybourne Lane, Badshot Lea, Waverley Lane, Farnham and west of Folly Hill, Farnham respectively. They participated in the draft Farnham Neighbourhood Development Plan (dFNP) process because they wished to develop their land. The dFNP was promoted by the interested party town council seeking to strike an appropriate balance between maintaining the environmental protections in the existing local plan (Local Plan 2002), whilst having regard, amongst other things, to the housing supply policies in the emerging local plan. The dFNP identified development potential for some 2,000 new dwellings, including allocations for some 784 dwellings but the claimants’ sites were not allocated for housing.
An independent examiner undertook an examination of the dFNP and produced a report pursuant to para 10 of Schedule 4B to the Town and Country Planning Act 1990 which indicated that the plan met the “basic conditions” for a lawful neighbourhood plan in para 8(2) and 12 of Schedule 4B and was in general conformity with the strategic development plan for the area. Local Plan 2002 was intended to run until 2006 but a number of its policies had been saved. The examiner noted that the draft plan was aligned with the emerging local plan and that it continued to respect the core aims of Local Plan 2002, even though it differed from that plan in providing for built-up area boundaries which extended into areas designated in the local plan as countryside. In the light of the examiner’s report, the defendant local authority decided that the dFNP met the basic conditions and put the plan to a referendum which passed the plan. The claimants applied for judicial review of that decision.
Held: The application was dismissed.
1) The authorities established that “in general conformity” was a broad and flexible test which allowed for some differences. The plans did not have to match precisely. It was for the examiner to decide, exercising his planning judgment and considering the plan as a whole, whether the making of the plan was in general conformity with the strategic policies in the development plan as required by para 8(2)(e) of Schedule 4B to the 1990 Act. The question whether the plan was in general conformity was likely to admit of more than one reasonable conclusion and the threshold for establishing irrationality was set high. In the present case, the examiner’s reasoning and conclusions were adequate, intelligible and clear and met the required standards, whether applying the more limited duty in para 10(6) of the Schedule 4B to the 1990 Act or the principles in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953. No-one who read the report would have been misled about the nature and extent of the differences between the dFNP and the local plan. The examiner’s approach to the identification of the strategic policies disclosed no error of law: R (on the application of Crownhall Estates Ltd) v Chichester District Council [2016] EWHC 73 (Admin) considered.
(2) An examiner examining a neighbourhood plan was undertaking a function which was narrowly prescribed by statute and he was subject to a limited statutory duty to give reasons. It was distinguishable from the function of an inspector determining a planning appeal, where the duty to give reasons was expressed in general terms. Paragraph 8(1) of Schedule 4B to the 1990 Act specified precisely what an examiner had to consider and provided that he should consider only the matters falling within that paragraph, in particular whether the “basic conditions” in para 8(2) were met. As the examiner was conducting an inquisitorial process, he was not subject to the particular obligation, which arose in relation to the adversarial process on a planning appeal, to inform the parties of the reasons why their main arguments succeeded or failed. It followed that the examiner would not embark upon the type of detailed scrutiny of draft policies and the relevant evidence which was conducted by an inspector examining a draft local plan.
An examiner’s obligation under para 10 of Schedule 4B was limited to giving reasons for his recommendations which were themselves limited to one of the three options in para 10(2): that the plan be submitted to a referendum; that the plan be submitted to a referendum with modifications; or that the proposed plan be refused. In respect of his other main findings, the examiner needed only to give a summary, ie, a brief account, not full reasons. In the present case, the reasoning and conclusions of the examiner were intelligible and clear and he had discharged his duty to give adequate reasons for his recommendations and to provide an adequate summary of his main findings. As the examiner’s examination and report were both lawful, the defendants were entitled to rely upon his recommendations in deciding, pursuant to para 12 of Schedule 4B, that the dFNP (as modified) met the basic conditions in para 8(2) and should be put to a referendum.
Rupert Warren QC (instructed by Pitmans LLP, of Reading, Cripps LLP, of Tunbridge Wells and Eversheds Sutherland (International) LLP) appeared for the claimants; Clare Parry (instructed by Sharpe Pritchard) appeared for the defendants; Lisa Busch QC (instructed by Kidd Rapinet LLP, of Farnham) for the interested party.
Eileen O’Grady, barrister
