District council defeats judicial review challenge over acceptance of report on neighbourhood plan

February 11, 2020

A development venture has lost a judicial review challenge over a district council’s decision to accept the report of an examiner into a neighbourhood plan.

The examiner had recommended that the Hook Neighbourhood Plan for 2018 to 2032 should be modified, and then put to a referendum.

Hart District Council accepted those recommendations on 28 August 2019.

The referendum took place in October 2019 and the neighbourhood voted in favour of the plan, which had been prepared by Hook Parish Council.

However, the claimant, Wilbur Developments, launched a legal challenge and the council agreed not to make the neighbourhood plan until the claim had been determined.

The claimant is a venture which has been created for the sole purpose of promoting development at a site, known as Owen's Farm, between the settlements of Newnham and Hook, and it has entered into a legal agreement with the owners of Owen's Farm for that purpose.

Planning permission has been refused, and Owen's Farm has not been allocated for development in the emerging local plan (eLP). The proposed terms of the Hook Neighbourhood Plan are likely to affect development at Owen's Farm in future, which led to the legal challenge.

In Wilbur Developments Ltd, R (On the Application Of) v Hart District Council [2020] EWHC 227 (Admin) the claimant advanced three grounds of challenge:

1. The district council's conclusion that draft Policy HK6 [on maintaining the gap between Hook and Newnham] met the basic conditions was unlawful in that:

i) it failed to have regard to paragraph 31 of the National Planning Policy Framework which requires an adequate evidential basis for a policy, and therefore failed to comply with basic condition (a);

ii) it failed to have regard to the principle of consistency in decision making set out in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137, and failed to take into account the conclusion of the eLP Inspector that a gap between Hook and Newnham was not supported by adequate evidence;

iii) alternatively, it failed to give any or adequate reasons for its decision that it was appropriate to approve draft Policy HK6 having regard to national policies and advice contained in guidance issued by the Secretary of State (basic condition (a)).

2. The district council's conclusion that draft Policy HK7 [saying development must not adversely impact on certain views including one across the Hook/Newnham gap where Owen’s Farm is situated] met the basic conditions was unlawful in that:

i) it failed to have regard to paragraph 31 of the NPPF, which requires an adequate evidential basis for a policy, and therefore failed to comply with basic condition (a);

ii) it acted irrationally in accepting the proposed modification, and failed to recognise that the proposed modified text failed to meet the basic conditions in that it ran the risk of preventing sustainable development coming forward;

iii) it failed to give any or adequate reasons for its decision that it was appropriate to approve draft Policy HK7 (i) having regard to national policies and advice contained in guidance issued by the Secretary of State (basic condition (a)), (ii) in respect of basic condition (d) to contribute to sustainable development, and (iii) as to why the amended version of the policy did not fall foul of the basic conditions but the original policy did.

3. The district council's decision breached its obligations under the Strategic Environmental Assessment Directive due to the failure of the Hook Neighbourhood Plan Strategic Environmental Assessment to consider reasonable alternatives and/or the defendant council failed to consider the claimant's argument that the SEA was deficient and/or failed to give intelligible and adequate reasons for finding that the SEA Directive had been complied with.

However, Mrs Justice Lang dismissed the claim. She found, amongst other things, that:

The examiner’s report in this case provided a sufficient basis upon which Hart District Council could properly conclude that the plan met the basic conditions and other statutory criteria, and that his recommendations ought to be accepted.
The examiner’s approach and his findings were consistent with he relevant policies in the NPPF and the Planning Practice Guidance. In making its decision, the council was entitled to rely upon the examiner’s reasoning.
Read fairly and as a whole, she considered that the examiner's reasoning was both intelligible and adequate, and met the required standard. Therefore, the defendant council acted lawfully in adopting the examiner's reasons as its own.
In relation to Policy HK6 the examiner and the district council correctly directed themselves on their approach to the Local Plan and the eLP, in accordance with the statutory scheme.
Both the examiner and the defendant council were entitled to conclude, in the exercise of their planning judgments, that draft Policy HK6 was underpinned by adequate evidence. “Therefore, there was no foundation for the Claimant's submission that they failed to have regard to paragraph 31 of the Framework on the preparation of plans. In truth, the Claimant was expressing its disagreement with the decision-makers' planning judgment in respect of draft Policy HK6.”
The examiner's reasons, adopted by the defendant, addressed the principal important controversial issues and enabled the claimant to understand why the matter was decided as it was. “The Claimant, who was a well-informed participant in both the HNP and eLP process, would have been able to assess that its prospects of obtaining permission to develop the Owen's Farm site remained poor, because the policy favoured a settlement gap between Hook and Newnham. Even if, contrary to my finding, there were weaknesses in the reasoning, the claimant failed to establish that it was substantially prejudiced by them.”
In relation to Policy HK7 the examiner, in the exercise of his planning judgment, had recommended a modified policy, supported by adequate evidence, which balanced the competing requirements of protecting important views across the landscape, and achieving sustainable development, having regard to the NPPF and the basic conditions. “The Defendant, exercising its planning judgment, agreed with the Examiner's conclusions. It is not the role of this Court to substitute its planning judgment for theirs.”
The draft policy was clear in its terms, “and the question whether or not a proposed development respects the identified views will be a matter for the planning decision-maker to determine, on the basis of the details in the application for planning permission before it”.

Mrs Justice Lang also rejected the third ground, saying she agreed with Lieven J’s previous conclusion that permission to proceed should be refused.