Bewley Homes Plc & Ors, R (on the application of) v Waverley Borough Council

A neighbourhood plan may be prepared and examined before an up-to-date Local Plan is adopted. The statutory test is whether it is in general conformity with the strategic policies of the development plan currently in force. That is a flexible planning judgment. The plans need not match precisely, and some conflict or adaptation to emerging policy may be permissible.

An examiner’s statutory function is narrower than the examination of a Local Plan for soundness. The examiner must address the statutory requirements and give reasons for recommendations, together with a summary of the main findings. The reasons need not address every representation or subsidiary finding. The court should respect the examiner’s planning judgment and intervene for irrationality only in exceptional circumstances.

The claimants, housing developers with interests in land in Farnham, sought judicial review of Waverley Borough Council’s decision that the draft Farnham Neighbourhood Development Plan met the statutory basic conditions and should proceed to referendum.

The claim challenged the examiner’s conclusions on three grounds: general conformity with the saved strategic policies in the Waverley Local Plan 2002; the adequacy of reasoning concerning Suitable Alternative Natural Greenspace and the Thames Basin Heaths Special Protection Area; and the treatment of landscape evidence concerning a proposed housing site.

The central issues were whether the neighbourhood plan could properly reflect an emerging Local Plan, the scope of the examiner’s statutory function and duty to give reasons, and whether the examiner’s planning judgments were irrational.

1. Ground 1 failed. The relevant development plan was the Waverley Local Plan 2002, including its saved policies. The statutory requirement in paragraph 8(2)(e) of Schedule 4B to the Town and Country Planning Act 1990 is a flexible test of general conformity with the strategic policies in force. It permits some differences between plans. The neighbourhood plan may also be aligned with an emerging Local Plan, particularly to reduce the risk that it becomes rapidly out of date.
2. The examiner was entitled to treat the draft plan as generally conforming with the Local Plan 2002 despite changes to the built-up area boundary and differences in housing policy. Whether the degree of difference remains within the statutory requirement is a matter of planning judgment. The plan must be considered as a whole. The court must not substitute its own planning judgment for that of the examiner.
3. The examiner’s function and duty to give reasons. The examination of a neighbourhood plan is confined by paragraph 8 of Schedule 4B. It is not an examination of the plan’s soundness under paragraph 182 of the National Planning Policy Framework. The examiner’s recommendations are also limited by paragraph 10. Under paragraph 10(6), the examiner must give reasons for the recommendations and summarise the main findings, but need not give reasons for every subsidiary finding or address every representation individually. The general principles in South Bucks District Council v Porter (No. 2) [2004] UKHL 33 require modification to reflect that statutory and inquisitorial context.
4. Ground 2 failed. The examiner had sufficient evidence concerning SANG capacity, occupancy levels, possible future provision and the role of Natural England. His recommended modifications expressly allowed bespoke SANG solutions and reflected the position concerning Coxbridge Farm. His conclusion that the plan satisfied the relevant sustainable-development and environmental requirements was a planning judgment open to him.
5. Ground 3 failed. The examiner recorded that he had given full and careful consideration to representations seeking additional housing allocations. He was not required to refer expressly to the claimants’ landscape evidence or every criticism of the Amec Report. His conclusions that the allocated sites accorded with relevant policy and that the plan contributed to sustainable development were adequately reasoned and were not irrational.
6. Permission was granted because the grounds were arguable, but the claim for judicial review was dismissed. Waverley was entitled to proceed on the basis that the modified plan met the basic conditions and should be put to a referendum.