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Neighbourhood Plan Quashed – Boundaries of the 'Soft Touch' Approach

Mrs Justice Patterson gave judgment today in R. (Stonegate Homes Limited and another) v. Horsham District Council and Henfield Parish Council [2016] EWHC 2512 (Admin) to quash the Henfield Neighbourhood Plan. This is a significant decision marking the boundaries to the 'soft touch' approach adopted to the scrutiny of NPs.

The plan was quashed on four grounds:

  1. 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.
  2. The maker of the plan is obliged to undertake an objective assessment of the policies of the plan when discharging the above duty.
  3. That alternatives need to be accurately presented in order for the SA/SEA of a plan to comply with European law.
  4. All key policies of the plan need to be assessed against reasonable alternatives to have a EU law compliant SA/SEA.

The Parish Council had prepared the HNP on the basis of a spatial strategy that favoured sites to the east of the settlement rather than those to the west because the development of the latter were said to give rise to unsustainable transport pressure in the centre of the village. However, this proposition was in conflict with the findings of an inspector determining a s.78 appeal in respect of the largest site to the west and the conduct of the LPA in withdrawing a highways reason for refusal in relation to the second largest site in the west.

Although this material was available to the promoters of the Plan, the Independent Examiner and the District Council they all failed to grapple in any way with the implications of these decisions to the rationale for rejecting expansion to the west as a reasonable alternative at the SA/SEA stage of the plan.
The third ground arose from the related issue that the plan excluded from the BUA boundary the site to the west that had been granted planning permission whereas it had inconsistently included the site to the east which likewise had been granted planning permission on appeal.

Mark Lowe QC and Rob Williams appeared for the Claimant.

David Lintott appeared for the Defendant Council.

Click here to view the judgment. Please contact them if you would like to discuss this decision further.