Abbey Properties Cambridgeshire Ltd v East Cambridgeshire District Council

In examining a neighbourhood plan, the statutory basic-conditions test is distinct from the test of soundness applicable to a local plan. An examiner must read and apply the relevant national policy as a whole, including the requirement that a Local Green Space be capable of enduring beyond the plan period. That requirement does not demand permanence or certainty that the designation will survive indefinitely. It is sufficient that development pressure is not likely to require release of the land before the end of the plan period. Whether an existing development-plan policy is out of date is a matter of fact and planning judgment. One policy may remain relevant even though another related policy has become out of date, provided the examiner explains the distinction and applies a lawful planning judgment.

The claimant sought judicial review under section 61N(2) of the Town and Country Planning Act 1990 of East Cambridgeshire District Council’s decision to accept the examiner’s recommendations on the Witchford Neighbourhood Plan and proceed to referendum. The plan designated the Horsefield as Local Green Space and adopted a spatial strategy relying on existing housing permissions and the locational strategy in the East Cambridge Local Plan 2015.

The claimant argued that the examiner had failed to consider whether the designation could endure beyond the plan period, had failed to investigate the reasons for a withdrawn local-plan inspector’s proposed deletion of the designation, and had wrongly treated the locational strategy as current despite related housing policies being out of date. The central issues were whether the examiner had applied the basic conditions lawfully and whether the reasoning disclosed a public-law error.

1. Judicial review dismissed. The examiner’s report was to be read fairly and as a whole. It sufficiently addressed the relevant national policy and the basic conditions.
2. The basic-conditions regime for a neighbourhood plan is not equivalent to the local-plan soundness test. The relevant question was whether it was appropriate to make the plan having regard to national planning policies and guidance, under Schedule 4B to the Town and Country Planning Act 1990. The examiner was entitled to apply that test rather than the more stringent test of consistency with national policy applicable to local-plan soundness.
3. The examiner had regard to paragraph 99 of the National Planning Policy Framework. His conclusions that the plan made adequate provision for housing, that its settlement boundaries were appropriate, and that development pressure would not probably require the Horsefield to be released before the end of the plan period showed that he had concluded that the designation was capable of enduring beyond that period. Direct repetition of the policy phrase was unnecessary.
4. The possibility of an early review if housing delivery elsewhere did not improve was contingent. It was not inconsistent with a present conclusion that the Local Green Space designation could endure beyond the plan period.
5. There was no legal requirement for the examiner or council to discover the reasons for the withdrawn local-plan inspector’s proposed modification. The two examinations involved different statutory tests and evidence. In any event, no report containing those reasons had been prepared.
6. Whether a development-plan policy is out of date is a matter of fact and planning judgment, depending on whether its provisions have been overtaken by changed factual circumstances, national policy or other relevant developments. The examiner was entitled to conclude that the locational strategy in policy GROWTH 2 remained relevant even though housing policies concerning quantity and allocation were out of date. The reasoning was lawful and adequately expressed.

First-instance judicial review proceedings. The judgment records no prior appellate decision in this litigation.