Performance Retail Ltd Partnership v Eastbourne Borough Council & Anor

An inspector examining a development plan document exercises a reviewing jurisdiction over the document as submitted. If it would be reasonable to conclude that the submitted document is sound, the inspector must recommend adoption without modifications. If it is unsound and the authority requests modifications, the inspector may recommend the modifications necessary to make it sound and is not confined to modifications proposed by the authority.

A sustainability appraisal may be assembled from reasonably accessible documents and need not be repeated for every change. Consultation may be adequate through general publicity where individual notice is not legally required and no prejudice is shown. A planning judgment will not be displaced by the court merely because another view was possible.

The claimant, owner of the Arndale Centre, challenged under section 113 of the Planning and Compulsory Purchase Act 2004 the adoption of Eastbourne’s Core Strategy insofar as it designated Sovereign Harbour Retail Park as a District Shopping Centre.

The challenge alleged that the inspector exceeded her power to recommend modifications, that the adopted plan lacked an adequate sustainability appraisal, that consultation on the modifications was defective, and that the modified retail policy could not protect the primacy of Eastbourne town centre.

1. Claim dismissed. The inspector was required to examine the development plan document as submitted. Her own planning judgment became relevant only if she concluded that it would not be reasonable to regard the submitted document as sound and the local planning authority had requested modifications. In that event, section 20(7C) of the Planning and Compulsory Purchase Act 2004 required her to recommend the modifications necessary to make the document sound. She was not limited to modifications proposed by the authority. The Council was entitled to adopt the document as modified.
2. The modified retail policy lawfully preserved both the hierarchy of centres and the sequential approach. The town centre remained at the top of the hierarchy. The sequential test applied between centres as a whole and edge-of-centre or out-of-centre sites; it did not require testing between every level of the hierarchy. The inspector was entitled to conclude that the policy protected the town centre.
3. The sustainability appraisal requirements were satisfied. An assessment of reasonable alternatives could be found in a combination of reasonably accessible documents. Not every new proposal or modification required a further assessment. The January and April appraisals together addressed the choice whether Sovereign Harbour should be designated as a District Shopping Centre, and MM11 made no substantive change requiring a separate appraisal.
4. The consultation challenge failed. There was no legal requirement to give the claimant individual notice, and no promise or legitimate expectation requiring it. Website publication, deposit-centre notices and newspaper advertisement were adequate. The claimant had not shown that it was denied an opportunity to make representations or suffered prejudice.

The claim was dismissed.