Town and country planning – Development – Neighbourhood plan – Claimant developers applying to quash decision of defendant local authority to make Henfield Neighbourhood Plan (HNP) – Whether defendants failing to assess reasonable alternatives to spatial strategy – Whether defendants acting rationally in selection of built-up area boundary (BUAB) – Whether defendants giving adequate reasons why plan met EU obligations – Application granted
The claimants were developers who promoted a site known as Sandgate Nursery, on the western side of Henfield, as a site for the development of 72 dwellings. A planning application in November 2014 was refused by the defendant local authority. That refusal was appealed by the claimants. The decision remained with the secretary of state for determination. An application for 160 residential units had been refused and was the subject of a planning appeal by Barratt Homes. That appeal had been allowed in June 2014.
The claimant applied under section 61N of the Town and Country Planning Act 1990 (as amended) to quash the defendants’ decision to make the Henfield Neighbourhood Plan (HNP). That decision was made following a referendum when the HNP was passed with a vote of 94.3% of the voters. The claimant contended that the defendants had failed to lawfully assess reasonable alternatives to the spatial strategy as established by the HNP and, in particular, the alternative of permitting development on the western edge of Henfield; had failed to consider any alternatives to the Built-Up Area Boundary (BUAB) as established in the HNP and had failed to act rationally in the selection of the BUAB; and failed to give any or adequate reasons as to why the HNP met EU obligations.
The defendants argued that the challenge was limited in scope by section 38A(4) and 38A(6) of the Planning and Compulsory Purchase Act 2004 Act to a consideration of whether the making of the neighbourhood development order would breach or otherwise be incompatible with any EU obligation or any of the Convention rights. Even if the scope of challenge was not so limited the option of developing land to the west of Henfield and that of including the “Barratt site” within the BUAB of Henfield had been adequately dealt with by the examiner and the defendants in a proportionate way and their reasons had been adequate.
Held: The application was granted.
(1) Where an issue had previously been the subject of a finding of fact or judgment by an expert independent tribunal in a related context, the decision-maker had to take into account and give appropriate respect to the conclusions of that tribunal. The weight to be given to the conclusions of the other tribunal, and the ease with which the decision-maker could depart from previous conclusions of the tribunal, depended upon the context. However, in all cases it was incumbent on the decision-maker to grapple with the conclusions of the tribunal and, if departing from them, to give reasons for so doing. Given the different nature of the exercises which an inspector on an appeal under section 78 of the 1990 Act was concerned and those with which an independent examiner or a plan-making authority was concerned, it would be difficult to conclude that the latter was bound by the decision of an inspector in relation to an individual site. But that was not to say that the Barratt decision and the current state of knowledge on the highways network should have been disregarded in the plan making system. The question was whether such evidence as there was, based upon local opinion and “what the community felt”, was sufficient to meet the standard required under the Strategic Environmental Assessment (SEA) Directive.
(2) In the present case, the policies within the HNP were not based on sound evidence. Although the level of detail of evidence for neighbourhood plans did not need to be as technical as that for local plans, qualitative evidence, which could be acceptable to support a policy, had to be supported by research. Concerns that some of the neighbourhood plan policies had not been based on evidence had been raised with both the defendants and the examiner of the neighbourhood plan but had been ignored. Each body had relied on another’s conclusions that the appropriate evidence was there, when in fact there was none. The law required both the examiner and the defendants to carry out a separate checking process that various requirements have been met deliberately.
(3) The SEA process needed to be iterative so that it could inform the development plan as it evolved. The identification of reasonable alternatives was a matter of evaluative assessment for the local planning authority, subject to review by the court on normal public law principles. The obligation under the SEA Directive was to ensure that the consideration of reasonable alternatives was based upon an accurate picture of what reasonable alternatives were. That was not done here. Not only was the conclusion wrong but also irrational, given the absence of an evidence base. The examiner’s flawed report then tainted the decision on the part of the defendants. But the defendants knew the position and had the relevant information. They were under an independent duty to set out their decision under regulation 19 of the Neighbourhood Planning (General) Regulations 2012 as to why they made the plan. They were clearly unable to make a lawful decision given that the plan breached and was incompatible with EU obligations. It followed that the assessment of reasonable alternatives within the SEA process was flawed and that the making of the HNP was incompatible with EU obligations. The decision on the part of the defendant to make the plan was thus irrational.
(4) Both the independent examiner’s report and the defendants’ decision statement failed to explain why they reached the conclusions that they did on compliance with EU obligations with appropriate rigour or particularity or how they concluded that their assessment of reasonable alternatives was compliant with the SEA Directive and Regulations. Although the claimants did not challenge the independent examiner’s report or the defendants’ dealing with it, they were still entitled to challenge, under section 61N, the consequences of the referendum which led to the making of the HNP on the statutory grounds contained within that section. As the flaws identified in the plan-making system were that the HNP was in breach of the SEA Directive and Regulations, the reasons given by the defendants in their decision statement were inadequate. They came nowhere close to dealing with the principal controversial issues of why the HNP complied with EU obligations.
Mark Lowe QC and Robert Williams (instructed by Russell-Cooke LLP) appeared for the claimants; David Lintott (instructed by Sharpe Pritchard LLP) appeared for the defendants.
Eileen O’Grady, barrister
