BDW Trading Ltd (t/a Barratt Homes) & Anor v Cheshire West & Chester Borough Council & Ors

A neighbourhood plan may proceed before an up-to-date local plan has been adopted. The examiner’s task is to determine whether the statutory basic conditions are met, not whether the neighbourhood plan is sound in the manner of a local plan. The relevant questions include whether the plan has regard to national policy, contributes to sustainable development and is in general conformity with the strategic policies of the adopted development plan. The adequacy of sustainability assessment, including the treatment of reasonable alternatives, involves planning judgment and depends on the plan’s content, detail and place within the hierarchy of plans. Apparent bias is assessed by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

The claimants, national housebuilding companies, challenged the Council’s decision to submit the Tattenhall Neighbourhood Plan to referendum. The plan included a policy permitting housing growth but limiting individual developments to 30 homes, subject to stated exceptions. The claimants had planning appeals pending concerning larger residential schemes in the neighbourhood-plan area.

They alleged four grounds: inadequate strategic environmental assessment; failure to ensure compliance with the neighbourhood-plan basic conditions; apparent bias arising from the examiner’s position as a non-executive director of a land company; and inadequate evidence and reasoning for the 30-home limit. The referendum took place while the claim was pending, but implementation was paused by agreement. The central issues were whether the Council lawfully decided that the plan could proceed to referendum and whether the examiner had exceeded or misunderstood his statutory role.

1. Claim dismissed. None of the four grounds of challenge succeeded.
2. The sustainability appraisal and environmental assessment were sufficient. The plan had been assessed throughout its preparation, including a “do nothing” option, and the assessment had to be considered in the context of a neighbourhood plan covering a limited area and forming part of a hierarchy in which wider housing numbers and distribution would be addressed by other plans. Under Article 5(2) of the Directive, the information required depended on the plan’s content and level of detail, its stage in the decision-making process and the extent to which assessment was more appropriately undertaken at another level. Whether the alternatives were adequately addressed was a matter of planning judgment. The Council had properly complied with the Directive and the SEA Regulations.
3. The examiner had correctly considered the basic conditions. The statutory exercise required regard to national policy and a judgment whether it was appropriate for the neighbourhood plan to proceed, whether it contributed to sustainable development and whether it was in general conformity with the strategic policies of the adopted development plan. It did not require the examiner to conduct the more investigative examination applicable to a local plan’s soundness.
4. The general-conformity condition applied to the neighbourhood plan as a whole and the adopted development plan as a whole. The examiner was not required to determine whether the neighbourhood plan conflicted with a policy in an emerging local plan, particularly where the relevant strategic housing policy had not yet been adopted. If a conflict later arose, the most recent development-plan document would take precedence under section 38(5) of the 2004 Act.
5. The 30-home limit had an evidential basis in the consultation process and the plan’s stated objectives. The examiner adequately addressed the material points and was not required to undertake a local-plan-style inquiry into the policy’s wider housing-delivery consequences.
6. Applying the apparent-bias test, the fair-minded and informed observer would know the examiner’s statutory role, the nature of the alleged interest, the sites’ differing planning stages and the wider housing-market context. Those facts did not create a real possibility of bias.