Capel Parish Council v Surrey County Council

At an independent examination of development plan documents, there is no presumption that the submitted plan is sound. The inspector must assess soundness independently and inquisitorially, considering material matters whether or not objectors have produced evidence of unsoundness. This includes testing the process by which sites were selected, rejected alternatives, site suitability, accessibility, environmental effects and the evidential basis for the proposed allocations. A material error in applying a presumption of soundness vitiates the inspector’s recommendation unless the court can be satisfied that the result would necessarily have been the same. A site allocation may not be left to project-level planning applications where unresolved matters could have led to exclusion from the plan.

The claimant brought two claims concerning the proposed development of an energy-from-waste facility at Clockhouse Brickworks, Capel. The first, under section 113 of the Planning and Compulsory Purchase Act 2004, challenged the inclusion of the site in the Surrey Waste Plan Development Plan Documents for waste treatment and thermal treatment. The second sought judicial review of three planning permissions granted for the facility.

The challenge focused on the inspectors’ recommendations following the independent examination of the Surrey Waste Plan. The principal issue was whether the inspectors had lawfully assessed the plan’s soundness, including the suitability of Clockhouse and alternative sites, after applying the wording in PPS12 which stated that a development plan document was presumed sound unless shown otherwise.

1. The claims succeeded. The inclusion of Clockhouse Brickworks in Policies WD2 and WD5 was quashed. Permission for judicial review was granted on Ground 1 and the three planning permissions were quashed.
2. Section 20(5) of the Planning and Compulsory Purchase Act 2004 required the inspectors to determine whether the plan was sound in neutral terms. Following Blyth Valley BC v Persimmon Homes (N) Ltd [2005] EWCA Civ 861, there was no presumption of soundness. The inspectors had to consider for themselves whether the policies were sound, including material matters not established by objectors.
3. The inspectors repeatedly applied the erroneous presumption. That approach affected their assessment of community involvement, the deletion of sites, the general site-selection process and the suitability of individual sites. The court could refuse relief only if satisfied that the result would have been the same under the correct approach. That test was not met.
4. The inspectors had failed to resolve material matters which could have led to exclusion of Clockhouse. These included the site’s proper classification as greenfield land, the rejection of Copyhold Works as an alternative, possible health effects associated with aircraft vortices and emission plumes, road and traffic capacity, and the adequacy of the evidence base. Such issues could not simply be postponed to project-level planning applications.
5. The proximity principle applied to disposal, but not to recovery. Incineration qualified as recovery only where energy production was its primary purpose. The inspectors’ approach would have been flawed if they treated a process requiring proximity as irrelevant, and they had also wrongly assumed that incineration had to be provided somewhere in Surrey.
6. The inspectors’ legally flawed recommendation meant that the policies were not within the appropriate power for the purposes of section 113. The consequential effect of quashing the policies on the wider Surrey Waste Plan was left for Surrey County Council to address.

The judgment was a first-instance decision. Sullivan J had directed that the principal judicial-review ground be rolled up with the section 113 claim. The court allowed the section 113 challenge, granted permission for judicial review on that ground and quashed the three planning permissions.