In a judgment handed down on 16 December 2022, Mr Justice Holgate found that both the examining inspector and the Council had erred in their interpretation of the Part 1 Strategic Plan (“LPP1”) by treating a requirement to allocate an additional 505 dwellings as being directed towards the north east region of the District, rather than the District as a whole (Ground 1).

The Judge also found that there was a breach of regulation 12(2) of the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”), because the Council had failed to consider any reasonable alternatives to the allocation of an additional 505 dwellings within the north east of the District (Ground 2).

In this case, the submission version of LPP2 had not originally proposed additional allocations within the north east of the District. However, during the initial examination hearings, the inspector was persuaded by a number of representations that it needed to do so and issued an interim note requesting the Council to carry out this further work.  

The case illustrates some important points of practice. 

First, whilst a local planning authority will (understandably) be keen to get its local plan adopted as soon as possible, it should not follow an inspector’s recommendation if it considers that the inspector has genuinely misunderstood or misinterpreted something. As the Judge accepted at [117], the local planning authority always has the option of making an application for judicial review during the examination to seek an urgent ruling from the High Court on a matter of law. 

Second, where an inspector recommends additional work that is required to make a plan sound, it is important to ensure that reasonable alternatives to that additional work are considered, even though they may differ from the inspector’s recommendation, because the inspector’s view is only provisional. 

The Judgment also provides some useful guidance on challenges to an environmental report carried out for the purposes of the SEA Regulations and the need to consider reasonable alternatives. It reiterates the distinction between failing to give any consideration at all to a matter required by the regulations, such consideration of reasonable alternatives to a particular policy or alternative development locations, and judgements about the level of detail which has been included within a report [128]; confirms that evaluative judgement about the scope of an assessment can be challenged if it is based on a misdirection in the first place [134]; and explains why relying upon revised policy “objectives” to delimit the scope of reasonable alternatives would largely defeat the purpose of the requirement in the first place [137] – [141].  

The additional allocations which were found to be unlawful have been remitted to be reconsidered by the Council through a new site assessment process. 

Alexander Greaves instructed by DLA Piper acted for the Claimant, Norton St Philip Parish Council.