Performance Retail Ltd Partnership (Claimant) Eastbourne Borough Council and Another (Defendants) The Prudential Assurance Company Limtied (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton |
| Judgment Date | 18 February 2014 |
| Neutral Citation | [2014] EWHC 102 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 February 2014 |
| Docket Number | Case No: CO/3663/13 |
[2014] EWHC 102 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/3663/13
Mr C Boyle, QC andMr G Williams (instructed by Lawrence Graham LLP) for the Claimant
Mr R Walton (instructed by DMH Stallard LLP) for the first Defendant
Ms C Patry (instructed by Treasury Solicitors) for the second Defendant
Mr J Pereira (instructed by Stephenson Harwood LLP) for the Interested Party
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr C M G Ockelton, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Eastbourne is a town and tourist resort on the Sussex coast, between Brighton and Hastings. Its planning authority is Eastbourne Borough Council, the first Defendant ("the Council"). Eastbourne's main shopping centre is the town centre. Sovereign Harbour Retail Park ("SHRP") stands well outside the town centre. Its retail facilities include warehouse-style shops. It is owned by the Prudential Assurance Company Limited, the Interested Party.
The Council began the process of consultation with a view to adopting a development plan document in the form of a Core Strategy in 2010. After various consultation processes, the Council submitted a plan to the Secretary of State, the Second Defendant, for independent examination, as it was bound to do before adopting it. The Secretary of State duly appointed an inspector, Sue Turner, to conduct the examination of it: it is convenient throughout this judgment to refer to the inspector, and to inspectors in general, using feminine pronouns.
At the time of its submission for examination, the part of the Core Strategy dealing with shopping, (Section D4), designated SHRP as a District Shopping Centre ("DSC"). By about the same time, the Council's consultation process had led it to the view that SHRP should not be so designated, so amongst the modifications it proposed was one that would have the effect of removing the designation. The inspector's report is dated 21 November 2012, and recommends adoption of the submitted document, subject to the inclusion of modifications she specified. The effect of the report was that, albeit modified, the Core Strategy designated SHRP as a DSC. On 20 February 2013 the Council adopted the "Eastbourne Core Strategy Local Plan (February 2013)" as recommended by the inspector, with the modifications she recommended.
The claimant is the owner of the Arndale Centre in Eastbourne town centre. By this claim, the claimant applies under section 113 of the Planning and Compulsory Purchase Act 2004 for an order quashing the Core Strategy insofar as it designates SHRP as a DSC. The reason why the designation of SHRP is important to the claimant is that its designation as a DSC gives certain planning advantages, which the claimant argues will endanger the continued primacy of the town centre itself.
The claimant raises four grounds, which may be summarised as follows. First, the inspector was not entitled to modify the documents submitted to her in the way that she did; secondly, the inspector was not entitled to recommend adoption of the plan with her recommended modifications, because the plan as so modified had not been the subject of a sustainability appraisal; thirdly, the modifications recommended by the inspector, and their effect of the plan as a whole, had not been the subject of proper consultation with the claimant; fourthly, the plan as modified by the inspector was defective in that it was incapable of protecting the primacy of the town centre in the manner that the inspector appears to have thought that it would.
The Statutory Background
The Core Strategy is a "development plan document" ("DPD") within the meaning of the Planning and Compulsory Purchase Act 2004 (as amended). Section 19 imposes general requirements in respect of such documents, including the following:
"19(1) Development plan documents must be prepared in accordance with the local development scheme.
(2) In preparing a development plan document or any other local development document the local planning authority must have regard to —
(a) national policies and advice contained in guidance issued by the Secretary of State;
…
(5) the local planning authority must also —
(a) carry out an appraisal of the sustainability of the proposals in each development plan document;
(b) prepare a report of the findings of the appraisal"
Sections 20 and 23 of the Act are as follows:
"20 Independent examination
(1) The local planning authority must submit every development plan document to the Secretary of State for independent examination.
(2) But the authority must not submit such a document unless-
a) they have complied with any relevant requirements contained in regulations under this Part, and
(b) they think the document is ready for independent examination.
(3) The authority must also send to the Secretary of State (in addition to the development plan document) such other documents (or copies of documents) and such information as is prescribed.
(4) The examination must be carried out by a person appointed by the Secretary of State.
(5) The purpose of an independent examination is to determine in respect of the development plan document —
(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound; and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation.
(6) Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the person carrying out the examination.
(7) Where the person appointed to carry out the examination —
(a) has carried it out, and
(b) considers that, in all the circumstances, it would be reasonable to conclude-
(i) that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, and
(ii) that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation,
the person must recommend that the document is adopted and give reasons for the recommendation.
(7A) Where the person appointed to carry out the examination -
(a) has carried it out, and
(b) is not required by subsection (7) to recommend that the document is adopted,
the person must recommend non-adoption of the document and give reasons for the recommendation
(7B) Subsection (7C) applies where the person appointed to carry out the examination —
(a) does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, but
(b) does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation.
(7C) If asked to do so by the local planning authority, the person appointed to carry out the examination must recommend modifications of the document that would make it one that —
(a) satisfies the requirements mentioned in subsection (5)(a), and
(b) is sound.
….
23 Adoption of local development documents
(1) The local planning authority may adopt a local development document (other than a development plan document) either as originally prepared or as modified to take account of —
a) any representations made in relation to the document;
b) any other matter they think is relevant.
(2) If the person appointed to carry out the independent examination of a development plan document recommends that it is adopted, the authority may adopt the document-
a) as it is, or
b) with the modifications that (taken together) do not materially affect the policies set out in it.
(2A) Subsection (3) applies if the person appointed to carry out the independent examination of a development plan document —
(a) recommends non-adoption, and
(b) under section 20(7C) recommends modifications ("the main modifications").
(3) The authority may adopt the document —
a) with the main modifications, or
b) with the main modifications and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the document if it was adopted with the main modifications but no other modifications
(4) The authority must not adopt a development plan document unless they do so in accordance with subsection ( 2) or (3)."
Publication of and consultation about the Core Strategy was governed until 6 April 2012 by the Local Development Regulations 2004 as amended ( SI 2004/2204). Regulation 25 required the Council to notify the intention to make the Core Strategy, and invite representations. The notification and invitation had to be given to such of the "specific consultation bodies" as the Council considered might have an interest in the subject matter of the Core Strategy; such of the "general...
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