Furness, R (on the application of) v Chief Executive Brighton & Hove City Council

A statutory review of a local plan is not an appeal on the merits. The court may intervene only for an error of law within the statutory grounds. Supplementary planning guidance may be referred to in a development plan, provided it does not replace policies or proposals that require public scrutiny. Such guidance remains separate from the plan, and defects in the guidance will not ordinarily invalidate the plan itself. A local planning authority has substantial discretion over the concise presentation of policy and the use of supplementary detail. Where a procedural requirement has not been complied with, the claimant must also establish substantial prejudice before the plan can be quashed.

The claimant sought under section 287 of the Town and Country Planning Act 1990 to quash parts of the Brighton and Hove Local Plan. The challenge concerned references to supplementary planning guidance and development briefs, alleged delegation of policy to that guidance, failures to follow an inspector’s recommendations, and alleged procedural defects in the preparation and presentation of the guidance.

The plan had been prepared under the Town and Country Planning (Development Plans) Regulations 1999. The central questions were whether the references to supplementary guidance were unlawful, whether the authority had failed to comply with statutory requirements or the inspector’s recommendations, and whether any procedural failure had substantially prejudiced the claimant.

1. Outcome. The application under section 287 of the Town and Country Planning Act 1990 failed. No part of the local plan was quashed. The defendant was awarded £7,500 costs, with liberty to apply concerning any further inquiry into Mr Abrahams’s role and possible liability for costs.
2. Nature of the review. Section 287 provides a statutory review, not an appeal. The court may quash the plan only on a ground of law: either that it is outside the powers conferred by Part II or that a statutory or regulatory requirement has not been complied with. Where the complaint concerns procedural non-compliance under section 287(1)(b), substantial prejudice must be shown before relief can be granted.
3. Supplementary planning guidance. PPG 12 permits references to supplementary planning guidance in a local plan. Guidance does not form part of the plan and may provide detailed criteria for applying plan policies. It must not be used to avoid public scrutiny of policies or proposals which belong in the plan, nor to delegate the substance of decision-making criteria. The authority retained discretion to present policy concisely and to use evolving supplementary material without including excessive detail in the plan.
4. Application to the complaints. References to existing or intended future guidance were not unlawful merely because the guidance was unavailable when the inspector considered the plan. Defects in cross-referencing, consultation records or annexing representations concerned the guidance rather than the validity of the plan in the usual course. The authority gave sufficiently clear and cogent reasons for not following the inspector’s recommendation concerning the King Alfred site, and no substantial prejudice was established in any event. The remaining complaints involved either permissible supplementary detail, an adequate policy read in context, or no irrational failure to respond to the inspector’s recommendation.

The judgment was a first-instance statutory review in the Administrative Court. The plan had proceeded through the statutory local-plan preparation and adoption process, including consideration of objections and an inspector’s report. No prior appellate decision is stated.