Hoare v The Vale of White Horse District & Ors

A neighbourhood plan may allocate land formerly used for mineral extraction if the proposed use does not conflict with, or prejudice compliance with, restoration or aftercare conditions. The relevant policy must be construed objectively from its language and context.

The statutory requirement of general conformity concerns the neighbourhood plan as a whole and the strategic policies of the development plan as a whole. Individual conflicts do not necessarily defeat general conformity, but the decision-maker must recognise and evaluate material conflicts. Questions of statutory interpretation and legal error remain matters for the court.

An environmental report need contain only information reasonably required to assess likely significant environmental effects and reasonable alternatives. Relief may nevertheless be refused where it is highly likely that the outcome would not have been substantially different.

Dr Anna Hoare sought judicial review of the decision of The Vale of White Horse District Council to accept modifications to the draft Faringdon Neighbourhood Plan and proceed to referendum. The challenge concerned Policy 4.5B, which safeguarded Wicklesham Quarry for future B2 and B8 employment uses after completion of quarrying and restoration activities.

The claimant argued that the policy concerned excluded development, failed to have regard to national planning policy concerning previously developed land, was not in general conformity with strategic policies in the development plan, and was incompatible with the SEA Directive and the Environmental Assessment of Plans and Programmes Regulations 2004.

The court had to determine whether the decision-making process contained material legal errors and, if so, whether relief should be granted.

1. Excluded development. Section 38B(1)(b) of the Planning and Compulsory Purchase Act 2004 excludes only provision about development that would conflict with or prejudice compliance with restoration or aftercare conditions. The mere existence of such conditions does not prevent a neighbourhood plan from making provision for a later use. Policy 4.5B was therefore intra vires.
2. Construction of Policy 4.5B. Development-plan policies are construed objectively from their language, read in context. Extrinsic material, including the examiner’s report and the county council’s views, was irrelevant except insofar as accepted modifications formed part of the plan. “Restoration activities” bore its ordinary meaning. The policy safeguarded employment use only after the land had been made fit for the purposes for which it was to be restored, which on the evidence meant completion of the approved restoration and aftercare scheme.
3. Basic conditions and legal error. The examiner and local authority were not confined to irrationality review. They could misdirect themselves on the meaning of legislation, national policy, “general conformity” or EU obligations, or take account of legally irrelevant matters. An error is immaterial only where the conclusion would necessarily have been the same.
4. General conformity. The relevant comparison was between the neighbourhood plan and the strategic policies in the development plan, considered collectively. “General conformity” is inherently imprecise and permits flexibility, but not without limit. Policy 4.5B conflicted with Policy GS2 of the Local Plan 2011. The court was not satisfied that the examiner and council would necessarily have reached the same conclusion had they recognised that conflict. They were therefore not lawfully satisfied that the basic condition was met.
5. Strategic environmental assessment. The assessment was required to contain information reasonably required to identify, describe and evaluate likely significant environmental effects and reasonable alternatives. Omissions concerning the quarry’s ecological characteristics did not make the sustainability appraisal incapable of being regarded as an environmental report. The alternatives assessment was sufficient, including consideration of the effects of developing or not developing the quarry.
6. Relief. Although one ground was well founded, section 31(2A) of the Senior Courts Act 1981 required relief to be refused because it was highly likely that the outcome for the claimant would not have been substantially different without the error. The court also held that the time limit in section 61N(1) of the Town and Country Planning Act 1990 prevented the adoption decision and validity of the plan being questioned in these proceedings.