Kendall v Rochford District Council & Ano

A local planning authority’s duty under section 19(3) of the Planning and Compulsory Purchase Act 2004 is to comply with its own statement of community involvement. It is not required to ensure that every affected resident is aware of a draft plan. Regulation 18 of the 2012 regulations gives the authority broad discretion as to whom to consult and how.

Under article 6 of the SEA directive and regulation 13 of the SEA regulations, consultation must give the public an early and effective opportunity to participate. A website may be used, but reliance on it alone, without effectively notifying the public or providing a means accessible to those without internet access, may breach those requirements. Relief remains discretionary. Where the defect caused no substantial prejudice, was repaired within the overall process, and a different outcome was inevitable, relief may properly be withheld.

The claimant challenged the adoption of the Rochford District Allocations Plan under section 113 of the Planning and Compulsory Purchase Act 2004. She alleged that the council had failed to comply with its statement of community involvement and regulation 18 of the 2012 regulations, had failed to conduct effective SEA consultation under article 6 of Directive 2001/42/EC and regulation 13 of the SEA regulations, and had failed to remedy alleged defects in consultation on the earlier Rochford District Core Strategy.

The inspector had found the consultation lawful and recommended adoption of the plan. The council adopted it in February 2014. The central questions were whether the inspector’s consultation conclusions were irrational, whether the SEA consultation was legally defective, whether the earlier core strategy could be reopened, and whether any breach justified relief.

1. Consultation on the draft plan. The council’s duty under section 19(3) of the Planning and Compulsory Purchase Act 2004 was to act in accordance with its own statement of community involvement. That statement deliberately allowed flexibility and did not require consultation with every resident, or any minimum level of public awareness. The inspector was required to assess compliance with the statement as adopted, not against additional objectives. Regulation 18 likewise left the authority to decide which residents and businesses it was appropriate to invite and the methods to use.
2. The inspector had considered the evidence, including the large number of later objectors and the council’s reliance on local media. His conclusion that the council had used the relevant techniques and complied with the statement and regulation 18 was reasonable and correct. Ground 1 therefore failed.
3. SEA consultation. Regulation 13(2) gave the council broad discretion, but article 6(2) and regulation 13(3) required an early and effective opportunity to express opinions on the draft plan and environmental report. An opportunity was effective only if members of the public were conscious of it and able to act within the consultation period. The council’s website was a permissible means of consultation, but it failed effectively to notify the general public that the consultation was taking place and failed to provide an additional means accessible to people without internet access. There was therefore a breach of article 6 and regulation 13.
4. The earlier core strategy. The challenge to the lawfulness of the adopted core strategy was outside the proper scope of the section 113 proceedings and offended the principle of administrative certainty. The allocations-plan inspector had no duty to investigate or repair an alleged defect in that earlier statutory process. Regulation 8(4) also made it unrealistic to require modifications inconsistent with the adopted development plan.
5. Relief. Under section 113, relief was discretionary. Applying Walton v Scottish Ministers [2012] UKSC 44, there was no automatic requirement to quash a plan following an SEA breach. The environmental report was valid, consultation had occurred, the public had participated throughout the wider plan-making process, and the defect caused no substantial prejudice. The outcome would inevitably have been the same, while granting relief would cause significant public-interest prejudice through delay and expense.
6. The application was dismissed.

First-instance statutory challenge. The judgment records that the inspector recommended adoption of the plan and that Rochford District Council adopted it on 25 February 2014.