Factual and Procedural Background
The appeal concerns whether a neighbourhood plan was unlawfully put to referendum after modifications were made by the local planning authority, differing partly from those recommended by the examiner. The appellant, Company A, challenged the decision of the respondent, City Council, to allow the Linton Neighbourhood Plan, prepared by Parish Council, to proceed to a referendum under the Town and Country Planning Act 1990 before adoption under the Planning and Compulsory Purchase Act 2004. The claim for judicial review was dismissed at first instance and permission to appeal was granted.
The dispute relates to a 4.5-hectare farmland known as "The Ridge" on the edge of the village of Linton. The landowner is an individual, but Company A holds an interest in access for potential housing development. The site was previously in the Green Belt but was removed in 2001 and designated a Protected Area of Search under the local development plan. The Parish Council opposes development and seeks to return the site to Green Belt status.
The Parish Council began preparing the neighbourhood plan in 2014, which was examined in 2015. The examiner recommended deleting Policy B2 and associated text concerning "The Ridge" to ensure conformity with strategic policies. The City Council accepted most recommendations but added text explaining the Parish Council's opposition to development on "The Ridge" beyond the examiner's recommendations and allowed the plan to proceed to referendum in December 2015. The neighbourhood plan has not yet been made.
Legal Issues Presented
- Did the City Council act outside its powers under paragraph 12(6)(a) of Schedule 4B to the 1990 Act by departing from the examiner's recommendations when modifying provisions relating to "The Ridge"?
- Did the City Council fail to give sufficient reasons for its modifications as required under paragraph 12(11)(b) of Schedule 4B and regulation 18 of the Neighbourhood Planning (General) Regulations 2012?
- In light of paragraph 13 of Schedule 4B and regulation 17A of the 2012 regulations, ought the City Council to have consulted on the modifications?
Arguments of the Parties
Appellant's Arguments
- The City Council exceeded its statutory powers by making modifications beyond the examiner's recommendations, particularly by inserting text about the Parish Council's opposition to development on "The Ridge".
- The modifications were unnecessary to meet the "basic conditions" and thus unlawful.
- The City Council failed to provide adequate reasons for departing from the examiner's recommendations, breaching statutory requirements.
- The City Council should have conducted further consultation on the modifications, either under statute or common law, due to the departure from the examiner's recommendations.
Respondent's Arguments
- The City Council acted within a broad discretion under paragraph 12(6) to make modifications necessary to secure conformity with the basic conditions and to correct errors.
- The additional text inserted was a factual explanation to correct cross-referencing errors and did not constitute a new policy or prejudice strategic decisions.
- The City Council gave adequate reasons for its decision, satisfying statutory requirements.
- No statutory or common law duty to consult arose post-examination as the circumstances did not trigger paragraph 13 consultation requirements.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Persimmon Homes (Thames Valley) Ltd. v Stevenage Borough Council [2005] EWCA Civ 1365 |
Standard of planning judgment and supervisory role of the court in assessing conformity of neighbourhood plans with strategic policies. |
Cited to support that the question of general conformity is a matter for planning judgment and the court applies a public law standard. |
| R. (on the application of DLA Delivery Ltd.) v Lewes District Council [2017] EWCA Civ 58 |
Clarification of the local planning authority's discretion in modifying neighbourhood plans to meet basic conditions. |
Used to affirm the broad discretion of the local planning authority in making modifications. |
| R. (on the application of Crownhall Estates Ltd.) v Chichester District Council [2016] EWHC 73 (Admin) |
Judicial review principles relating to neighbourhood plan modifications and conformity with strategic policies. |
Referenced to support the approach to judicial review and planning judgment. |
| R. (on the application of Cherkley Campaign Ltd.) v Mole Valley District Council [2014] EWCA Civ 567 |
Distinction between policy text and supporting text in development plans and their weight in planning decisions. |
Referenced regarding the legal effect of supporting text in development plans. |
| Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin) |
Consideration of supporting text in development control decisions. |
Used to illustrate that supporting text, though not policy, is taken into account in decisions. |
| Dover District Council v CPRE Kent [2017] UKSC 79 |
Standards for giving reasons in planning decisions. |
Applied to assess adequacy of the City Council’s reasons for modifications. |
| R. (on the application of Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 |
Common law duty to consult and procedural fairness principles. |
Discussed in relation to the existence and scope of consultation duties in planning decisions. |
| R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 |
Limits on the courts imposing duties of consultation absent statutory provision. |
Used to support that duties of consultation should be imposed by Parliament, not courts. |
| R v Devon County Council, ex parte Baker [1995] 1 All ER 73 |
Common law principles of fairness and legitimate expectation in consultation. |
Referenced for principles governing procedural fairness and consultation. |
| R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 |
Standards of fairness and legitimate expectation in public law decision-making. |
Applied to distinguish consultation duties and procedural fairness. |
| R v Brent LBC, ex parte Gunning (1985) 84 LGR 168 |
Content and fairness requirements of consultation. |
Discussed in the context of what proper consultation entails. |
Court's Reasoning and Analysis
The court first addressed whether the City Council exceeded its statutory powers by modifying the neighbourhood plan beyond the examiner's recommendations. It recognized the broad discretion afforded to local planning authorities under paragraph 12(6)(a) of Schedule 4B to make modifications necessary to secure that the plan meets the basic conditions, including general conformity with strategic policies. The court held that the City Council's insertion of explanatory text in the table about "The Ridge" was a legitimate exercise of planning judgment, intended to correct cross-referencing errors and provide factual context without creating new policy or prejudicing strategic decisions.
The court emphasized that the City Council did not reproduce the deleted Policy B2 or its associated text but rather provided a succinct note consistent with the examiner's recommendations and the statutory scheme. This modification was within the scope of powers to secure conformity and correct errors. The court rejected the appellant's contention that the modification was unlawful and found no breach of statutory procedure.
Regarding the adequacy of reasons given by the City Council, the court found that the reasons, although succinct, were not unclear or inadequate. The City Council's decision statement sufficiently explained the amendment as correcting a cross-referencing error, and no further detailed explanation was necessary to meet the statutory requirements under paragraph 12(11) and regulation 18(2). Even if there was a deficiency, it was minor and did not vitiate the decision to proceed to referendum.
On the issue of consultation, the court rejected the appellant's argument that a common law duty to consult arose due to the City Council's departure from the examiner's recommendations. The statutory scheme provided for consultation during the examination phase, and paragraph 13 of Schedule 4B set out limited post-examination consultation requirements triggered only by new evidence, new facts, or different views on particular facts, none of which applied here. The court held that the examiner's recommendations were matters of planning judgment, not facts, and the City Council's modification did not engage the consultation duty. The court further found no common law duty to consult beyond the statutory provisions and no legitimate expectation of consultation.
Holding and Implications
DISMISSED
The court dismissed the appeal, holding that the City Council acted within its statutory powers in modifying the neighbourhood plan before referendum, provided adequate reasons for its decisions, and was under no duty to conduct further consultation beyond that required by statute. The decision confirms the broad discretion of local planning authorities in modifying neighbourhood plans to secure conformity with strategic policies and clarifies the limited scope of consultation duties post-examination. The direct effect is that the neighbourhood plan, as modified and put to referendum, stands, and no new legal precedent altering the statutory framework or consultation duties was established.