Ref. R (BDW Trading Limited, t/a Barratt Homes and others) v Cheshire West and Chester Council and others [2014] EWHC 1470

In this case, two major house builders – Barratt Homes and Wainhomes – challenged, by way of Judicial Review, the decision by Cheshire West and Chester Borough Council to progress a Neighbourhood Development Plan in the village of Tattenhall, Cheshire, which curtailed development plans they had for the area.

The two large developers, along with Taylor Whimpey, had respective schemes of up to 68 homes, 110 homes and 137 homes planned for the area, which at the time of the claim were undetermined appeals, having had planning permission refused previously.

Whilst they sought to construct sizeable developments in the area, the local Neighbourhood Forum for Tattenhall sought to restrict development, considering that unmanaged growth would erode the character of the village. They produced a Neighbourhood Development Plan under the Localism Act 2011 which referred to accommodating growth in Tattenhall in a way which respected its character. Specifically, Policy 1 in the Plan provided that policies involving up to 30 homes would be allowed within or immediately adjacent to the built up part of the village over the plan period, with limited exceptions.

The development companies objected to this curtailment, which would have finally put pay to their aspirations for the area. Instead of claiming against the Plan, however, which has not yet been passed, they called a Judicial Review over the actions of the Independent Examiner – who advised that the Plan be put to the public in a referendum as is.

The Claimants argued on two main points:

-          They claimed that the Strategic Environmental Assessment (SEA) process was defective. Whilst the Council only assessed the options of ‘do nothing’ as against ‘do something’, the Claimants argued that the SEA Directive and the Environmental Assessment of Plans and Programmes Regulations 2004 both require there to be an assessment of the likely significant effects of the plan and of reasonable alternatives to it. The claimants submitted that the council’s express disavowal of assessing alternatives was a breach of the Directive and the Regulations. The claimants contended that alternatives such as allowing fewer, larger sites to be developed or adopting a different numerical limit should have been assessed.

-          The Claimants further argued that paragraph 8(2) of Schedule 4B to the Town and Country Planning Act 1990 sets out a number of “basic conditions” which a neighbourhood plan must meet. The primary element at issue in this case was whether:

“Having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the plan [Basic condition (a)];”

The claimants argued that condition (a) could not be met because there had been no consideration of whether the restraint mechanism in policy 1 was appropriate in order to meet the objectives of national policy, particularly paragraph 47 of the NPPF (providing for full, objectively assessed housing needs and significantly boosting the supply of housing).

Further points were raised which are beyond the scope of this brief review. The full judgement is available here.

In response to the claim concerning the SEA, the Judge accepted the Defendant’s submission that the question of whether adequate alternatives were addressed when carrying out the SEA was a matter of planning judgment. He concluded that the Council and Examiner had been entitled to rely upon the lengthy consultation process to guide their judgement and that considering alternatives which would not have gained public support would have been unreasonable, as any Neighbourhood Plan can only be approved by public referendum.

On the second matter, Condition (a) requires regard to be paid to national policy and then a consideration of whether it is appropriate to make the plan. There is no legislative requirement for a NP to be “sound” in actuality, only to be appropriate in its conception. The Judge concluded that it was simply not incumbent upon the Examiner to enquire properly into the justification for the 30-dwelling limit – that limit was in line with the Council’s Local Plan, which had to pass through the Secretary of State for approval, and was a matter of planning judgement. He reinforced the idea that a Neighbourhood Plan comes within a hierarchy of plans, with the Local Plan a stage above.

Ultimately, the Judge rejected the Judicial Review – a decision which will provide extra confidence to those now moving forward with their own Neighbourhood Development Plans. For those carefully considering the potential for developers to take action against them, it seems that both SEAs and other forms of examination for a Neighbourhood Plan will be more lenient than the fairly stringent controls allocated to the Local Plans. For developers who wish to challenge such a plan, so long as any alternatives which might reasonably have been supported by the public in a referendum have been considered, the result could well be the same as for the defeated Barratt and Wainhomes.

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SRJ / LCB                                                                                                                            03/06/2014