A bit legalese but VERY IMPORTANT for those currently putting together Neighbourhood Plans.
Developers have won a High Court challenge over a district council’s decision to make a neighbourhood plan.
In Stonegate Homes Ltd & Anor, R (On the Application Of) v Horsham District Council  EWHC 2512 Horsham took the decision to make the Henfield Neighbourhood Plan on 27 April 2016. This followed a referendum earlier in the month where the plan was passed with a vote of 94.3% of the voters.
The claimants were developers who were promoting a 72-dwelling site on the western side of Henfield. They have appealed Horsham’s refusal of their planning application for that site in November 2014; the decision is with the Communities Secretary for determination.
The claimants issued a claim under section 61N of the Town and Country Planning Act 1990 (as amended) (the 1990 Act) over Horsham’s making of the neighbourhood plan. They put forward three grounds, which were that:
The defendant council had failed to lawfully assess reasonable alternatives to the spatial strategy as established by the neighbourhood plan and, in particular, the alternative of permitting development on the western edge of Henfield;
The defendant had failed to consider any alternatives to the Built-Up Area Boundary (BUAB) as established in the neighbourhood plan and had failed to act rationally in the selection of the BUAB;
The defendant and/or the examining inspector failed to give any or adequate reasons as to why the neighbourhood plan met EU obligations.
The council as the defendant submitted in response:
(i) That the challenge was 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 was 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.
However, Mrs Justice Patterson found for the claimants across a number of grounds:
The plan was quashed on four grounds:
It is incumbent upon the makers of the plan, the Independent Examiner and the making authority when certifying in its opinion that the plan was compliant with EU law to employ reasoning that is sound in the public law (Wednesbury) sense.
The maker of the plan is obliged to undertake an objective assessment of the policies of the plan when discharging the above duty.
That alternatives need to be accurately presented in order for the SA/SEA of a plan to comply with European law.
All key policies of the plan need to be assessed against reasonable alternatives to have a EU law compliant SA/SEA.