Swan Quay LLP, R (on the application of) v Swale Borough Council

In examining a neighbourhood plan, the statutory basic conditions are distinct from the soundness test applicable to a local plan. Whether a plan is in general conformity with the strategic policies of the development plan is a matter of planning judgment. The assessment may address site-specific proposals individually, as well as the plan’s wider policies. The statutory power to recommend modifications is limited to modifications needed to secure compliance with the basic conditions, or to correct errors. Reasons are legally adequate where they explain intelligibly the material considerations, planning judgments and connection between those matters and the recommended modifications. A particularly sensitive heritage setting may justify rejecting residential use and taller buildings at one site without requiring a detailed comparison with other sites in the same neighbourhood plan.

Swan Quay LLP challenged Swale Borough Council’s decision to accept an examiner’s recommendations modifying the Faversham Creek Neighbourhood Plan and progressing it to referendum. The modifications removed residential use from the Swan Quay site, restricted the proposed redevelopment, and required protection of the site’s industrial and maritime character. The challenge was limited to whether the examiner had given adequate reasons for concluding that the unmodified plan failed the statutory basic conditions and for recommending the modifications. The central issues were the meaning of general conformity with strategic policies and whether the examiner’s reasoning sufficiently explained the site-specific treatment of Swan Quay.

1. The claim was dismissed. The examiner’s reasons were legally adequate and the modifications were within the statutory power.
2. The basic conditions for a neighbourhood plan are not equivalent to the soundness requirement applicable to a local plan. Under paragraph 8(2)(e) of Schedule 4B to the Town and Country Planning Act 1990, the relevant question concerns general conformity with the strategic policies of the development plan. The strategic policies must be considered as a whole, but a site-specific proposal may properly, and sometimes essentially, be assessed individually.
3. General conformity is a flexible but limited planning judgment. It allows some conflict and room for manoeuvre, but a neighbourhood plan must not contradict or subvert the achievement of the main strategic policies. The absence of strategic policies means that paragraph 8(2)(e) is not engaged, but does not legally prevent production of a neighbourhood plan.
4. The examiner’s power under paragraph 10(3) of Schedule 4B is confined to modifications needed to secure compliance with the basic conditions or to correct errors. Paragraph 10(6) requires reasons for each recommendation. Applying the principles in South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953, the reasons must make the basis of the decision clear, but need not address every possible detail.
5. The examiner had adequately explained that Swan Quay was in a particularly sensitive historic location, contained heritage assets and features making a positive contribution to the conservation area, and retained an industrial and maritime character. The adopted site description formed part of his reasons. His conclusion that loss of employment use, residential development and taller buildings would harm that character and conflict with policies B1 and AAP2 was a permissible planning judgment.
6. Although “gentrification” was not a technical planning term, it conveyed the examiner’s conclusion that residential development would erode the industrial legacy and introduce historically unprecedented uses, aesthetics and design requirements. The examiner was entitled to consider the claimant’s illustrative proposals. He was not required to undertake a detailed compare-and-contrast exercise with other sites because Swan Quay had its own particular sensitivity and qualities.