Stonegate Homes Ltd and Another v Horsham District Council Henfield Parish Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 13 October 2016 |
| Neutral Citation | [2016] EWHC 2512 (Admin) |
| Docket Number | Case No: CO/2515/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 October 2016 |
The Queen (on the application of
and
[2016] EWHC 2512 (Admin)
The Hon. Mrs Justice Patterson DBE
Case No: CO/2515/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Lowe QC and Robert Williams (instructed by Russell-Cooke) for the Claimants
David Lintott (instructed by Sharpe Pritchard) for the Defendant
Hearing date: 4 October 2016
Judgment Approved
Introduction
This is a claim under section 61N of the Town and Country Planning Act 1990 (as amended) (the 1990 Act) which seeks to challenge the decision of the defendant on 27 April 2016 to make the Henfield Neighbourhood Plan (HNP). That decision was made following a referendum held on 12 April 2016 when the HNP was passed with a vote of 94.3% of the voters.
The claimants are developers who have been promoting a site known as Sandgate Nursery, on the western side of Henfield, as a site for the development of 72 dwellings. A planning application was refused by the defendant on 25 November 2014. That refusal was appealed by the claimants. The decision remains with the Secretary of State for determination.
The claim is brought on three grounds:
i) That the defendant had failed to lawfully assess reasonable alternatives to the spatial strategy as established by the HNP and, in particular, the alternative of permitting development on the western edge of Henfield;
ii) That the defendant had failed to consider any alternatives to the Built-Up Area Boundary (BUAB) as established in the HNP and had failed to act rationally in the selection of the BUAB;
iii) That the defendant and/or the examining inspector failed to give any or adequate reasons as to why the HNP met EU obligations.
The defendant submits:
i) That the challenge is limited in scope by section 38A(4) and section 38A(6) of the 2004 Act to a consideration of whether the making of the neighbourhood development order would breach or would otherwise be incompatible with any EU obligation or any of the Convention rights;
ii) Even if the scope of challenge is not so limited the option of developing land to the west of Henfield and that of including the "Barratt site" within the BUAB of Henfield had been adequately dealt with by the examiner and the defendant in a proportionate way and the reasons that had been advanced were adequate.
An acknowledgement of service and summary grounds of resistance were filed by the interested party, Henfield Parish Council, on 3 June 2016, which submit:
i) That it lawfully assessed development sites put forward during the call for sites including those on the western edge of Henfield;
ii) It did consider alternatives to the BUAB and it acted rationally in the selection of the BUAB.
Apart from submission of those grounds the Parish Council has played no active role in the proceedings before me.
On 27 June 2016 Gilbart J ordered a "rolled-up hearing".
Legal framework
Development plans
The development plan has a particular significance in the operation of the planning system in England. Section 38(6) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act) provides:
"(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Neighbourhood development plans
Amendments to the 2004 Act were made by the Localism Act 2011. Those amendments provide for a process whereby parish councils or bodies designated as neighbourhood forums can initiate the making of a neighbourhood development plan. The provisions provide for an independent examination of a neighbourhood development plan. The examiner may recommend that the plan, with or without modification, is submitted to a referendum. If more than half of those voting at a referendum vote in favour of the plan, the local planning authority must make the neighbourhood development plan.
The material provisions of section 38A of the 2004 Act provide:
"(1) Any qualifying body is entitled to initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development plan.
(2) A 'neighbourhood development plan' is a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan.
(3) Schedule 4B to the principal Act, which makes provision about the process for the making of neighbourhood development orders, including—
(a) provision for independent examination of orders proposed by qualifying bodies, and
(b) provision for the holding of referendums on orders proposed by those bodies,
is to apply in relation to neighbourhood development plans (subject to the modifications set out in section 38C(5) of this Act).
(4) A local planning authority to whom a proposal for the making of a neighbourhood development plan has been made—
(a) must make a neighbourhood development plan to which the proposal relates if in each applicable referendum under that Schedule (as so applied) more than half of those voting have voted in favour of the plan, and
(b) if paragraph (a) applies, must make the plan as soon as reasonably practicable after the referendum is held."
A qualified body is a parish council or an organisation or body designated as a neighbourhood forum authorised to act for a neighbourhood area for the purposes of a neighbourhood development plan: see section 38A(12) of the 2004 Act. Section 38B(1) of the 2004 Act prescribes that neighbourhood development plans must specify the period for which they are to have effect, may not include provision about excluded developments as defined and may not relate to more than one neighbourhood area.
Schedule 4B to the 1990 Act, with modifications, is applied to the process of preparing and making a neighbourhood plan: see sections 38A(5) and 38C(5) to the 2004 Act. Paragraph 7 of Schedule 4B requires the local authority to submit a draft neighbourhood plan for independent examination. Paragraph 8, as modified by section 38C(5)(d) of the 2004 Act, provides, so far as material:
"8(1) The examiner must consider the following—
(a) whether the draft neighbourhood development order meets the basic conditions (see sub-paragraph (2)),
(b) whether the draft order complies with the provision made by or under sections 61E(2), 61J and 61L,
…
(2) A draft order meets the basic conditions if—
(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the order,
…
(d) the making of the order contributes to the achievement of sustainable development,
(e) the making of the order is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area),
(f) the making of the order does not breach, and is otherwise compatible with, EU obligations, and
(g) prescribed conditions are met in relation to the order and prescribed matters have been complied with in connection with the proposal for the order."
The reference in paragraph 8(2)(e) to the development plan excludes the neighbourhood development plan (see paragraph 17 of Schedule 4B to the 1990 Act). The basic condition in paragraph 8(2)(e) therefore means, "in general conformity with the strategic policies contained in the development plan (documents) for the area (or any part of that area)."
Paragraph 9 sets out the general rule that the examination of the issues by the examiner is to take the form of the consideration of written representations.
Paragraph 10 sets out what the examiner must do after the independent examination. That reads, where relevant:
"10(1) The examiner must make a report on the draft order containing recommendations in accordance with this paragraph (and no other recommendations).
(2) The report must recommend either—
(a) that the draft order is submitted to a referendum, or
(b) that modifications specified in the report are made to the draft order and that the draft order as modified is submitted to a referendum, or
(c) that the proposal for the order is refused.
(3) The only modifications that may be recommended are—
(a) modifications that the examiner considers need to be made to secure that the draft order meets the basic conditions mentioned in paragraph 8(2),
(b) modifications that the examiner considers need to be made to secure that the draft order is compatible with the Convention rights,
(c) modifications that the examiner considers need to be made to secure that the draft order complies with the provision made by or under sections 61E(2), 61J and 61L,
(d) modifications specifying a period under section 61L(2)(b) or (5), and
(e) modifications for the purpose of correcting errors.
…
(5) If the report recommends that an order (with or without modifications) is submitted to a referendum, the report must also make—
(a) a recommendation as to whether the area for the referendum should extend beyond the neighbourhood area to which the order relates, and
(b) if a recommendation is made for an extended area, a recommendation as to what the extended area should be.
(6) The report must—
(a) give reasons for each of its recommendations, and
(b) contain a summary of its main findings.
(7) The examiner must send a copy of the report to the qualifying body and the local planning authority.
(8) The local planning authority must then arrange for the publication of the report in such manner as may be prescribed."
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