Wilbur Developments Ltd, R (On the Application Of) v Hart District Council

In a challenge to a neighbourhood plan, the local planning authority’s task under paragraph 12 of Schedule 4B to the Town and Country Planning Act 1990 is to consider the examiner’s recommendations and satisfy itself that the statutory conditions are met. It need not duplicate the examiner’s detailed assessment of evidence or planning merits.

An examiner’s report must be read fairly and as a whole. Reasons need address the principal important controversial issues, but need not respond seriatim to every representation. An emerging local plan is relevant evidence, but a neighbourhood plan is tested for general conformity with adopted strategic policies, not emerging policy. Under the SEA Directive, reasonable alternatives are evaluated by reference to the plan’s objectives. For a plan without housing allocations, the assessment may properly remain at a high level.

The claimant sought judicial review of Hart District Council’s decision under paragraph 12 of Schedule 4B to the Town and Country Planning Act 1990 to accept the examiner’s report on the Hook Neighbourhood Plan, make recommended modifications and proceed to referendum.

The challenge concerned policies protecting the gap and views between Hook and Newnham, the evidential basis for those policies, their relationship with the emerging Hart Local Plan, the adequacy of the examiner’s reasons, and the strategic environmental assessment’s treatment of reasonable alternatives. The claim was brought under section 61N(2) of the 1990 Act. Permission was refused on the SEA ground, which was heard with the substantive claim.

1. Disposition. Permission was refused on Ground 3. Grounds 1 and 2 failed. The claim was dismissed.
2. Statutory task and standard of review. A challenge under section 61N(2) of the Town and Country Planning Act 1990 is confined to public law grounds. Under paragraph 12 of Schedule 4B, the local planning authority must consider the examiner’s recommendations and reasons, decide what action to take, and satisfy itself that the plan meets the basic conditions and other statutory requirements. It is not required to duplicate the examiner’s detailed examination of evidence or planning merits. The Court must not substitute its own planning judgment.
3. Reasons and representations. An examiner’s report is read fairly, in good faith and as a whole. The principles in South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83, Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263 and South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953 apply. Reasons need be intelligible and adequate, addressing the principal important controversial issues, but an examiner need not answer every representation seriatim. The authority was entitled to adopt the examiner’s reasons.
4. Policy HK6. The principle in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137 did not require consistency with provisional modifications in an emerging local plan. The emerging plan had not received a final or formal decision and its contents remained uncertain. The statutory requirement was general conformity with the adopted strategic policies in the development plan. The examiner and authority were entitled to find that the gap policy was supported by adequate evidence and was in general conformity with the adopted Local Plan.
5. Policy HK7. The examiner was entitled to modify a stringent policy requiring views to be protected into a less restrictive requirement that development should respect identified views. The evidence, including relevant landscape studies, local detail and the site visit, was sufficient. The modified policy represented a lawful planning judgment balancing landscape protection and sustainable development.
6. Strategic environmental assessment. Article 5(1) of the SEA Directive required reasonable alternatives to be identified and evaluated by reference to the plan’s objectives. Applying R (Friends of the Earth) v The Welsh Ministers [2015] EWHC 776 (Admin), the examiner and authority were entitled to assess alternatives at the level of development within or outside the settlement boundary. The requirement did not extend to assessing alternative boundaries for the proposed green gaps where the neighbourhood plan did not allocate housing sites.
7. Any deficiency in reasons would not have caused substantial prejudice. The examiner’s report was intelligible and adequate, and the local planning authority acted lawfully in accepting it.