Barrow Borough Council, R (on the application of) v Cumbria County Council

In a development plan examination, the Inspector must examine the document submitted by the local planning authority. A site omitted from the final consultation and submitted document cannot ordinarily be introduced at the examination without appropriate consultation and an opportunity for affected objectors to be heard. A previous objector is entitled to assume that the authority will defend its submitted plan. Failure to consult may substantially prejudice the public interest and render the adopted plan outside the relevant statutory power. Any post-submission change permitted by guidance requires careful consideration of further consultation, adequate notice and, where necessary, an adjournment.

Barrow Borough Council sought, under section 113(3) of the Planning Compulsory Purchase Act 2004, to quash Cumbria County Council’s adopted Minerals and Waste Development Framework Site Allocation Policies Development Plan Document.

The challenge concerned site M12, a proposed sand and gravel quarry extension. The site appeared in an earlier consultation, but was omitted from the final consultation and from the document submitted for examination. Cumbria later proposed its inclusion during the Inspector’s examination, without notifying Barrow or inviting its representations. The central issue was whether that procedure satisfied the statutory consultation and examination requirements.

1. Claim allowed. The DPD was quashed. Cumbria was ordered to pay Barrow’s costs, subject to detailed assessment if not agreed.
2. The statutory examination was directed to the DPD submitted by the local planning authority. Under sections 20(5)–(7) of the Planning Compulsory Purchase Act 2004, the Inspector had to determine whether that submitted document satisfied the statutory requirements and was sound, and make recommendations in relation to it.
3. The statutory structure did not require a local authority or an objector to anticipate that a proposal abandoned before the regulation 28 stage would be revived during the examination. Barrow was entitled to assume that Cumbria would seek to uphold the submitted DPD and that any proposed changes would not be considered without consultation or, at minimum, proper notice and an opportunity to make representations.
4. The effect of the relevant provisions of the Town and Country Planning (Local Development) (England) Regulations 2004 was that the Inspector was required to take account of representations made pursuant to regulation 28. The statute and regulations did not contemplate post-submission changes. The Inspectorate guidance addressed such changes only in extremely limited circumstances and subject to safeguards.
5. The judge expressed no concluded view on whether the guidance was legally correct. If such changes could be made, however, the local planning authority bore a very heavy onus to consider whether further consultation, an adjournment, and proper notice to previous objectors were required.
6. Cumbria’s introduction of M12 at the examination stage, after its omission from the final regulation 25 consultation and the regulation 28 consultation, breached a procedural requirement. Barrow suffered substantial prejudice because it had no opportunity to object to the site’s inclusion on soundness grounds. To that extent, the adopted DPD was outside the relevant statutory power.