Flaxby Park Ltd v Harrogate Borough Council

In a strategic environmental assessment, the identification and assessment of reasonable alternatives are matters of evaluative judgment for the plan-making authority and, on examination, the Inspector. The court applies conventional public law review and does not substitute its own planning judgment. Alternatives may be progressively discarded where the authority gives rational reasons. SEA is iterative, so a procedural defect may be cured by later assessment, consultation and consideration. However, where supplementary environmental material has been produced and consulted upon, the body responsible for submitting or adopting the plan must take that material, and the consultation responses or an adequate summary, into account. In an authority operating executive arrangements, those functions lie with the full Council at submission and adoption, although other plan-making functions may be delegated.

Flaxby Park Ltd challenged the adoption of the Harrogate District Local Plan under section 113 of the Planning and Compulsory Purchase Act 2004. The challenge concerned policies identifying Green Hammerton/Cattal as a broad location for a new settlement.

The claimant alleged that the Council had failed to assess Flaxby as a reasonable alternative on an equal basis, had omitted additional land from the Flaxby assessment, and had insufficient evidence about the viability and deliverability of Green Hammerton/Cattal. During the examination the Inspector requested additional sustainability appraisal work comparing broad locations. That work and consultation responses were not considered by the full Council before adoption.

1. Grounds 2 and 3 dismissed. The Council was entitled to assess the additional 630 hectares at Flaxby as unjustified at the late stage at which it was put forward. Its conclusions about public transport, expansion, place-making, ecology, viability and deliverability were matters of planning judgment supported by legally sufficient evidence. They were not irrational.
2. Reasonable alternatives. The identification, selection and comparable treatment of reasonable alternatives under the Environmental Assessment of Plans and Programmes Regulations 2004 are generally matters of evaluative judgment. The court applies conventional public law review. An authority may progressively discard options which it rationally considers do not meet its objectives. HBC was initially entitled to proceed without comparing the Green Hammerton/Cattal broad location with Flaxby, which it had already rejected as a reasonable alternative.
3. Effect of supplementary assessment. Once HBC produced and consulted upon Sustainability Appraisal Addendum 2, the comparison of broad locations fell within the environmental assessment process. The consultation material had to be conscientiously taken into account. SEA is iterative, and the later work could have cured any earlier defect.
4. Allocation of responsibility. Under the statutory framework governing executive arrangements, officers could prepare the addendum and conduct consultation under delegated powers during the examination. But the full Council had to take the environmental assessment as it then stood into account when resolving to submit the plan and when resolving to adopt it. Those functions were non-delegable. The Cabinet also had responsibility for considering the Inspector’s recommendations before the adoption decision, but it had not considered the environmental assessment or an adequate summary.
5. Relief. The failure at the adoption stage to comply with regulation 8(3), insofar as the SEA related to the new settlement policies, rendered adoption of those policies unlawful. The defect affected only the adoption stage. The whole Local Plan was remitted under section 113, with directions that the Cabinet and full Council reconsider the Inspector’s recommendations and adoption of the new settlement policies in light of the relevant SEA material. A quashing order was inappropriate.

First-instance statutory review in the High Court (Administrative Court). The court upheld ground 1 to a limited extent, rejected grounds 2 and 3, and remitted the Local Plan for reconsideration.