Performance Retail Ltd Partnership v Eastbourne Borough Council & Anor

Eastbourne is a town and tourist resort on the Sussex coast, between Brighton and Hastings. Its planning authority is Eastbourne Borough Council, the first Defendant (“the Council”). Eastbourne’s main shopping centre is the town centre. Sovereign Harbour Retail Park (“SHRP”) stands well outside the town centre. Its retail facilities include warehouse-style shops. It is owned by the PrudentialAssuranceCompany Limited, the Interested Party.

The Council began the process of consultation with a view to adopting a development plan document in the form of a Core Strategy in 2010. After various consultation processes, the Council submitted a plan to the Secretary of State, the Second Defendant, for independent examination, as it was bound to do before adopting it. The Secretary of State duly appointed an inspector, Sue Turner, to conduct the examination of it: it is convenient throughout this judgment to refer to the inspector, and to inspectors in general, using feminine pronouns.

At the time of its submission for examination, the part of the Core Strategy dealing with shopping, (Section D4), designated SHRP as a District Shopping Centre (“DSC”). By about the same time, the Council’s consultation process had led it to the view that SHRP should not be so designated, so amongst the modifications it proposed was one that would have the effect of removing the designation. The inspector’s report is dated 21 November 2012, and recommends adoption of the submitted document, subject to the inclusion of modifications she specified. The effect of the report was that, albeit modified, the Core Strategy designated SHRP as a DSC. On 20 February 2013 the Council adopted the “Eastbourne Core Strategy Local Plan (February 2013)” as recommended by the inspector, with the modifications she recommended.

The claimant is the owner of the Arndale Centre in Eastbourne town centre. By this claim, the claimant applies under section 113 of the Planning and Compulsory Purchase Act 2004 for an order quashing the Core Strategy insofar as it designates SHRP as a DSC. The reason why the designation of SHRP is important to the claimant is that its designation as a DSC gives certain planning advantages, which the claimant argues will endanger the continued primacy of the town centre itself.

The claimant raises four grounds, which may be summarised as follows. First, the inspector was not entitled to modify the documents submitted to her in the way that she did; secondly, the inspector was not entitled to recommend adoption of the plan with her recommended modifications, because the plan as so modified had not been the subject of a sustainability appraisal; thirdly, the modifications recommended by the inspector, and their effect of the plan as a whole, had not been the subject of proper consultation with the claimant; fourthly, the plan as modified by the inspector was defective in that it was incapable of protecting the primacy of the town centre in the manner that the inspector appears to have thought that it would.

The Core Strategy is a “development plan document” (“DPD”) within the meaning of the Planning and Compulsory Purchase Act 2004 (as amended). Section 19 imposes general requirements in respect of such documents, including the following:

“19(1) Development plan documents must be prepared in accordance with the local development scheme.

(2)

In preparing a development plan document or any other local development document the local planning authority must have regard to –

(a)

national policies and advice contained in guidance issued by the Secretary of State;

…

(5)

the local planning authority must also –

(a)

carry out an appraisal of the sustainability of the proposals in each development plan document;

(b)

prepare a report of the findings of the appraisal”

Sections 20 and 23 of the Act are as follows:

“20 Independent examination

(1)

The local planning authority must submit every development plan document to the Secretary of State for independent examination.

(2)

But the authority must not submit such a document unless- (a) they have complied with any relevant requirements contained in regulations under this Part, and

(b)

they think the document is ready for independent examination.

(3)

The authority must also send to the Secretary of State (in addition to the development plan document) such other documents (or copies of documents) and such information as is prescribed.

(4)

The examination must be carried out by a person appointed by the Secretary of State.

(5)

The purpose of an independent examination is to determine in respect of the development plan document –

(a)

whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;

(b)

whether it is sound; and

(c)

whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation.

(6)

Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the person carrying out the examination.

(7)

Where the person appointed to carry out the examination –

(a)

has carried it out, and

(b)

considers that, in all the circumstances, it would be reasonable to conclude-

(i)

that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, and

(ii)

that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document’s preparation,

the person must recommend that the document is adopted and give reasons for the recommendation.

(7A) Where the person appointed to carry out the examination -

(a)

has carried it out, and

(b)

is not required by subsection (7) to recommend that the document is adopted,

the person must recommend non-adoption of the document and give reasons for the recommendation

(7B) Subsection (7C) applies where the person appointed to carry out the examination –

(a)

does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, but

(b)

does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document’s preparation.

(7C) If asked to do so by the local planning authority, the person appointed to carry out the examination must recommend modifications of the document that would make it one that –

(a)

satisfies the requirements mentioned in subsection (5)(a), and

(b)

is sound.

….

23 Adoption of local development documents

(1)

The local planning authority may adopt a local development document (other than a development plan document) either as originally prepared or as modified to take account of –

Publication of and consultation about the Core Strategy was governed until 6 April 2012 by the Local Development Regulations 2004 as amended (SI 2004/2204). Regulation 25 required the Council to notify the intention to make the Core Strategy, and invite representations. The notification and invitation had to be given to such of the “specific consultation bodies” as the Council considered might have an interest in the subject matter of the Core Strategy; such of the “general consultation bodies” as the Council considered appropriate; and, if the Council thought it appropriate to invite representations from persons resident or carrying on business in the area, such of those persons as they thought appropriate. Under reg 27, when the Council had a plan that it proposed to send to the Secretary of State under section 20 of the Act, it was required to publish the plan and the procedure for making representations about it, and send to each of the “specific consultation bodies” and “general consultation bodies” that they had identified under reg 25, information enabling representations to be made. Regulation 27 also required a local advertisement giving similar information, and reg 28 makes it clear that any person may make representations about a development plan document which a local planning authority proposes to submit under s 20, but representations must be made within the period and according to the procedure set out by the Council.

Regulation 30 begins by setting out the documents which had to accompany the Core Strategy when submitted to the Secretary of State under section 20, as required by s 20(3). They include “(a) the sustainability appraisal report for the DPD”; (d) a statement setting out the bodies and persons identified for the purposes of reg 25, how they were invited to make representations, a summary of their representations and how the representations have been taken into account; and (e)-(f) representations made under reg 28, with a statement setting out the number of representations and the issues raised, or a statement indicating that no representations were made under reg 28. Regulation 30(3) imposes various requirements as to notification on publication of the materials sent to the Secretary of State.

By the time the matter came before the inspector, regs 25 to 30 of the Local Development Regulations had been replaced by regs 18 to 22 of the Town & Country Planning (Local Planning) (England) Regulations 2012 (SI 2012/767). For present purposes there is no material difference between the old and the new, save the numbering: the substance of old reg 28 is now in reg 20, and reg 23 in the 2012 Regulations is as follows:

“Before the person appointed to carry out the independent examination under section 20 of the Act makes a recommendation under section 20(7), (7A) or (7C) of the Act the person must consider any representations made in accordance with Regulation 20.”

There are transitional provisions which make it clear that the representations made under reg 28 of the old Regulations accordingly had to be considered by the inspector.

I deal with the grounds individually.

The first ground is that in recommending a combination of modifications that had not been envisaged by the process leading up to the submitted plan, the inspector did what she was not entitled to by s 20, and the Council should not have adopted the Core Strategy as so modified.

Soundness is at the heart of the examination of the DPD under s 20. Soundness as a concept has no statutory definition, but paragraph 182 of the National Planning Policy Framework (NPPF) indicates that a sound plan is one that is positively prepared, justified, effective, and consistent with national policy. Soundness is a matter of planning judgment. Following the amendments to the 2004 Act made by the Localism Act 2011, however, the inspector’s examination is no longer merely a matter of her judgment as to soundness: the process is closely regulated.

The examination is of the DPD that the local planning authority has submitted. The first stage includes consideration of its soundness; but at this stage the inspector exercises not as it were an original but a reviewing jurisdiction. Looking for the moment at the statutory process in relation to soundness only, the question is whether ‘in all the circumstances it would be reasonable to conclude that the document … is sound’. If it would be reasonable so to conclude, then, subject to the other statutory requirements, the inspector ‘must recommend that the document is adopted’. If not, the inspector ‘must recommend non-adoption’ (ss 20(7) and (7A)). Such a recommendation precludes the authority from adopting it (s 23(4)).

The inspector’s own original planning judgment is to be deployed only if two conditions are fulfilled. They are first that she takes the view that it would not be reasonable to conclude that the submitted document is sound, and secondly that the local planning authority has asked for modifications to be recommended. In those circumstances the inspector is required to recommend modifications that would make it sound (s 20(7B) and (7C)).

It is apparent that the inspector has no power to recommend modifications or in any other way to exercise her own planning judgment if the submitted document is one that falls for recommendation under s 20(7): she may not herself consider it sound, but unless it would not be reasonable to consider it sound, she must recommend it as it is. It follows that modifications may be adopted only where they are necessary to improve a DPD that it would not be reasonable to conclude is sound. In those circumstances the inspector’s duty is to do what (and only what) is necessary in order to modify the document into one that is in her own judgment sound.

Two further conclusions follow from consideration of the s 20 process in relation to soundness. One is that the identification of the submitted document is crucial. If it meets the requirements of s 20(7) as it stands, the examination process cannot modify it. If it does not, it will be the inspector’s own planning judgment that validates modifications. The other is that there is no requirement for the local planning authority to suggest particular modifications, or indeed any formal provision for it to do so. Indeed there cannot, it seems, be any restriction on what modifications the inspector may adopt, given her obligation under s 20(7C) to do what is necessary by way of modification on order to make the document sound.

At the hearing there was some discussion about whether a planning authority can submit a DPD only if it considers that it is sound. There is no requirement to that effect in the statute, which refers only to an obligation not to submit unless ‘they think [it] is ready for independent examination’ (s 20(2)(b)), but paragraph 182 of the NPPF says that: ‘a local planning authority should submit a plan for examination which it considers is sound’. On behalf of the claimant Mr Boyle QC attempted to establish that the plan as submitted to the inspector was not considered sound. The evidence showed, he said, that the Council apparently concluded, after preparing the DPD for submission, that SHRP should not be a DSC, and so wanted the submitted plan to be considered in conjunction with proposed changes to it, which would have excluded SHRP from designation as a DSC. That proposition might conceivably have been relevant if the Council’s decision to submit the DPD to the examination process in January 2012 had been challenged. But it was not challenged then and is not challenged now. Once the DPD was submitted it was for the inspector to examine it in accordance with the s 20 process.

The claimant’s case has throughout been put as if the document submitted for examination was to be regarded as the printed submission document coupled with the Council’s proposed modifications (or some of them, but in particular removing the designation of SHRP as a DSC). It was for that reason that I sought clarification of precisely what had been submitted for examination; and, as a result, the Council produced correspondence. Letters passing between the Council and the Inspectorate in the period 31 January – 5 March 2012 reveal the following. The DPD was submitted under cover of a letter of 31 January, together with a schedule of proposed changes following consultation. The Inspectorate drew a distinction between minor changes and ‘Major Modifications’. The former are matters outside the control of the examination process and I do not need to deal with them. One of the proposed modifications was regarded as major: the deletion of SHRP from classification as a DSC. That would, according to the Inspectorate’s letter of 22 February, require public consultation of six weeks. On 29 February the Council made the formal request under s 20(7C) for modifications to the submitted document if necessary. Also by letter of that date the Council asked the submitted document as amended by the minor changes to be considered at the examination:

“We are writing to make a formal request for the Inspector to recommend such modifications as she considers are required to make the Core Strategy sound. We would ask that she considers the submitted major modifications … where it is considered that these would make the Core Strategy sound”

At the same time the Council expressed a preference for a preference for the consultation on the identified Major Modification to take place after the inspector’s examination. At no stage did the Council attempt to withdraw the submitted document in order to replace it by another as it apparently could have done following the repeal by the Localism Act 2011 of the prohibition on withdrawal.

By the time the inspector replied on 5 March another Major Modification had been identified, but that is not relevant to these proceedings. The inspector set out the advantages, as she saw them, of consulting on these modifications before the hearings. She confirmed what is apparent from the statutory scheme, that ‘the examination can only deal with the original submitted Core Strategy’, that is to say not in conjunction with proposed modifications. I reject the claimant’s submission that the submitted document consisted of the Strategy as modified by the Council’s suggested modifications.

It is in my judgment clear from this correspondence, and from the statutory scheme, that the inspector correctly identified her task. She was required to consider the DPD as submitted. If it did not fall for recommendation under s 20(7), as she had been asked to consider modifications, she was required to recommend such modifications as would make the document sound. It was of course open to the Council to draw attention to the possibility of particular changes that might make it sound, because of the inspector’s statutory duty it must be very dubious whether Council could restrict the ambit of her consideration of necessary modifications once the s 20(7C) process was under way. In any event, it is clear from the first sentence of the letter that the Council intended the inspector to consider whatever modifications she thought necessary for the purpose.

In this context it seems to me that the first ground of challenge cannot succeed. The inspector’s conclusion was that the document would be sound if (for present purposes) modified in the manner suggested by the Council in its MM [Major Modification] 9, which became the inspector’s MM11. The Council’s position was (or may have been) that in order to make the Strategy sound, its MOD1 (excluding SHRP from the DSC designation) and its MM9 (providing clarification) were needed. Mr Boyle’s submission, drawn from the consultation history, is that the inspector was not being invited under s 20(7C), to consider ‘main modifications’ which amended the text of Policy D4 but did not delete SHRP: the two sets of modifications stood together. But that is an attempt to restrict the inspector’s exercise of her planning judgment in a way that finds no support in the Act or indeed the process of submission of the Strategy to her. After taking the various proposals and arguments into account she was entitled, at the s 20(7C) stage, to recommend the modifications that she thought were needed: she was not restricted to a scheme of modifications proposed by the Council. In any event, the Council’s request in relation to the modifications was, as I have indicated, in general terms.

Mr Boyle sums up his position on this ground as follows at paragraphs 5.8-5.9 of his written skeleton argument:

“The consequence under the statutory scheme was that the inspector’s recommendation meant that the only Core Strategy the [Council] could lawfully adopt was one that: (a) it had not promoted; (b) it had not consulted upon; (c) it had not considered sound, as required under s 20(2); and (d) had been amended by a Modification that the inspector had not been invited to consider under s 20(7C). To [make this recommendation] was, therefore, in breach of her powers under s 20(7C) and for the [Council] to adopt the document was, accordingly, in breach of s 23(3).”

The difficulty of that submission as a complaint about the lawfulness of the relevant decisions lies precisely in the use of the word ‘lawfully’. The statutory scheme envisages exactly what happened. The submitted document was not one that the inspector thought it would be reasonable to conclude was sound: indeed nobody has suggested that it was. She exercised her judgment as to what modifications were necessary to make it sound. Her judgment as to the soundness of the Strategy as a result of the examination superseded the Council’s consideration of soundness. When the Council adopted the document as modified it acted on the inspector’s judgment that in that state it was sound.

It is I think worth pointing out that the summary of the claimant’s case that I have set out above sits rather oddly with the relief it seeks, which is quashing of the designation of SHRP as a DSC in D4 and on the map but no other changes to the adopted Strategy. Despite Mr Boyle’s submissions on the general view taken by the Council, the position is that an Order to that effect would effectively force on the Council a Core Strategy that had never been considered as a whole had never been assessed as sound by anyone, had never been subject to examination or recommendation under s 20, and had never been adopted. The truth of the matter is that the only Core Strategy the Council could lawfully adopt indeed had the features identified by Mr Boyle: so, acting lawfully, the Council adopted it.

It is convenient to deal with this ground next, because it follows naturally from ground 1: it is an attack on the Council’s reliance on the inspector’s planning judgment as to the soundness of the Strategy as modified in accordance with her recommendations. Specifically, this ground argues that the Core Strategy as adopted failed to provide the protection to Eastbourne Town Centre envisaged by the inspector, and that its adoption by the Council was therefore erroneous in law in being founded on an immaterial consideration, namely the inspector’s view that her modification had overcome the risk to the town centre inherent in the designation of SHRP as a DSC.

The passage of the inspector’s report dealing principally with this issue is as follows:

“62.

Sovereign Harbour is designated in Eastbourne Borough Plan (2001 – 2011) as an out of town shopping centre. However inclusion of Sovereign Harbour as a District Shopping Centre (DSC) in the retail hierarchy in Policy D4 is consistent with the Council’s neighbourhood and strategic goals for the area. The designation is strongly supported by local residents who regard it as an acknowledgement of the Council’s commitment to broaden the range of community facilities and local services at Sovereign Harbour. Furthermore it removes the anomaly of Sovereign Harbour as an area which is a focus for housing growth but remains one the few neighbourhoods that does not contain a designated district, local or neighbourhood shopping centre.

63.

Concerns have been raised that the DSC designation will facilitate additional retail floorspace and threaten the viability of retail development in the town centre. Furthermore attention has been drawn to the Council’s May 2010 Shopping Assessment, where the shopping centre at Sovereign Harbour is referred to as the Crumbles Retail Park, an out of centre retail warehouse park and its designation as a DSC is not recommended

64.

Any future retail development at Sovereign Harbour would need to be considered against Policy D4, which places the town centre at the top of the retail hierarchy and states that the impact of new retail development must not have an unacceptable impact on the vitality and viability of the town centre and other centres. However discussion at the examination hearings revealed that this policy does not provide sufficient clarity in prioritising the town centre for new retail development. For this reason the Council has proposed a main modification to spell out more clearly the sequential approach to site selection, with the town centre clearly placed above DSCs. Subject to this modification (MM11), Policy D4 provides an effective policy tool to control retail uses in other centres in order to protect the town centre. In these circumstances there is no reason why designation of Sovereign Harbour as a DSC should have a harmful impact on the town centre.

65.

The sustainability appraisal of Policy D4 makes no specific reference to the designation of Sovereign Harbour as a DSC. However work has been carried out during the examination, by the Council and others, to assess the sustainability outcomes for designation or non-designation of Sovereign Harbour as a DSC. The Council’s re appraisal of D4 in core document CS4(B): Addendum to the Eastbourne Plan – Core Strategy Sustainability Appraisal Appendices (April 2012), considers only the omission of Sovereign Harbour from the list of DSCs, which is in fact the status quo. It differs from the submitted SA in that it concludes that not allocating Sovereign Harbour as a DSC would support the growth of the town centre and allow retail opportunities to be focused on the town centre. It could be inferred from this that the opposite, designation as a DSC, would be harmful to town centre growth and vitality. However I am satisfied that this potential outcome of the designation would be mitigated in full by MM11, which clarifies the sequential approach, with the town centre as the priority location for retail development.

66.

In conclusion the Plan’s designation of Sovereign Harbour as a DSC is consistent with its overall strategy and the goal of securing sustainable neighbourhoods. It would enable the Council to protect community facilities and services at Sovereign Harbour from edge and out of centre development and enable it to function as a sustainable neighbourhood. Subject to MM11 Policy D4 is therefore justified, effective and consistent with paragraph 24 [sic: paragraph 23 is clearly intended] of the NPPF which requires Local Plans to define a network and hierarchy of centres that is resilient to anticipated future economic change.”

Modification MM11 affects policy D4 as follows. The original version, after setting out policy relating specifically to the Town Centre, and going on to designate the other Shopping Centres and their place in the hierarchy, continued:

“The Council will enable the enhancement of consumer choice and strengthening of the vitality, viability and accessibility of the district and local centres by supporting new retail development which:

• complies with the sequential approach to site selection, which prioritises development in existing centres, followed by edge-of-centres, and then out-of-centre sites which are accessible by a choice of transport means; … ”

The modification replaced that bullet point with:

“complies with the sequential approach to site selection, which prioritises development in the following order:

•

Eastbourne Town Centre Primary and Secondary Shopping Areas (PSAs and SSAs);

•

District Shopping Centres (DSCs);

•

Local Shopping Centres (LSCs);

•

Neighbourhood Shopping Centres (NSCs);

•

Edge-of-centres; and

•

Out-of-centre sites, which are accessible by a choice of transport means.”

The relevant parts of the NPPF are paragraphs 23 and 24:

“23.

Planning policies should be positive, promote competitive town centre environments and set out policies for the management and growth of centres over the plan period. In drawing up Local Plans, local planning authorities should:

•

recognise town centres as the heart of their communities and pursue policies to support their viability and vitality;

•

define a network and hierarchy of centres that is resilient to anticipated future economic changes;

•

define the extent of town centres and primary shopping areas, based on a clear definition of primary and secondary frontages in designated centres, and set policies that make clear which uses will be permitted in such locations;

•

promote competitive town centres that provide customer choice and a diverse retail offer and which reflect the individuality of town centres;

•

retain and enhance existing markets and, where appropriate, re-introduce or create new ones, ensuring that markets remain attractive and competitive;

•

allocate a range of suitable sites to meet the scale and type of retail, leisure, commercial, office, tourism, cultural, community and residential development needed in town centres. It is important that needs for retail, leisure, office and other main town centre uses are met in full and are not compromised by limited site availability. Local planning authorities should therefore undertake an assessment of the need to expand town centres to ensure a sufficient supply of suitable sites;

•

allocate appropriate edge of centre sites for main town centre uses that are well connected to the town centre where suitable and viable town centre sites are not available. If sufficient edge of centre sites cannot be identified, set policies for meeting the identified needs in other accessible locations that are well connected to the town centre;

•

set policies for the consideration of proposals for main town centre uses which cannot be accommodated in or adjacent to town centres;

•

recognise that residential development can play an important role in ensuring the vitality of centres and set out policies to encourage residential development on appropriate sites; and

•

where town centres are in decline, local planning authorities should plan positively for their future to encourage economic activity.

24.

Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale.”

Paragraph 24 requires a sequential test in the case of applications for town centre use other than in designated centres. That test would apply to any application for town centre use in SHRP if it were not itself designated as a centre. It would enforce protection of the Town Centre as well as all other designated centres against areas not designated as centres, by requiring justification of town centre uses outside those centres. It would therefore reduce the possibility of retail development at SHRP: there would be an impact on the Sovereign Harbour area. The inspector was concerned with a range of issues in reference to the town as a whole, not merely the Town Centre or Sovereign Harbour. She considered the Council’s Spatial Strategy, and at paragraphs 51-54 dealt with the allocation of employment space at Sovereign Harbour. She concluded that the inclusion of Sovereign Harbour as a Centre was consistent with the Council’s neighbourhood and strategic goals for the area. To that extent the positive case for designation of SHRP as a DSC was in her view made out. That was purely a matter for her in the exercise of her planning judgment.

There can be no doubt that the inspector appreciated the risk to the town centre. Contrary to the claimant’s assertion, she did not at paragraphs 64-65 accept that the designation of SHRP without adequate protection of the Town Centre would harm the primacy of the Town Centre: she said that was a ‘potential outcome’, but that if the if MM11 was adopted there was no reason why there should be an actual harmful effect on the Town Centre. The reason she gave was that MM11 spelt out more clearly ‘the sequential approach to site selection, with the town centre clearly placed above DSCs’. As so modified, she thought that the relevant part of the policy ‘provides an effective tool to control retail uses in other centres in order to protect the town centre’.

Mr Boyle submits that that reasoning betrays a misunderstanding of the sequential test, the circumstances in which it applies, and the passages of the NPPF that bore on the issue.

Mr Boyle does not appear to object to the wording of MM11 itself: he observes that it was put forward by the Council in conjunction with the proposal to remove the designation of SHRP as a DSC and in that context raises no objection against it, even though it treats other centres in the way that he objects to SHRP being treated. Be that as it may, his argument is that once SHRP is designated as a centre, the sequential test of paragraph 24 does not apply to developments within it. To that extent the sequential test cannot protect the Town Centre against proposed developments in SHRP. Each centre may compete with any others, and a development proposed within a centre cannot under the sequential test be rejected on the basis that that there is some other centre where it would be more appropriate. A proposal for a development in SHRP for a main town centre use (for example retail) would simply not be subject to the sequential test because it would not be for a development ‘not in an existing centre’.

But I note that paragraphs 23 and 24 of the NPPF do not contain either of the phrases ‘sequential approach’ and ‘site selection’ used in both the original version of D4 and the modification; and it by no means necessarily follows from the use of the word ‘sequential’ in either version that the inspector thought that she was able to impose a sequential test between centres. If one starts by assuming that she was aware of the terms and meaning of the NPPF, it is in my judgment not difficult to see what she meant. Paragraph 23 requires, as she said, a network and hierarchy of centres. That is to say, it requires not merely that there be centres, but that the relationship between them and their relative importance is set out. To suggest that applications for development in any centre are to be considered on the same basis is to ignore the concept of a hierarchy.

At Eastbourne, even with SHRP designated as a DSC, the Town Centre is at the top of the hierarchy. That would enable decisions as to developments proposed at other centres to be considered by reference to the hierarchy, and, in particular, by reference to the question whether the proposed development was of a scale and function that better suited a centre further up the hierarchy; and whether it would be ‘fully integrated within the existing shopping centre’, as well as whether it would have ‘an unacceptable adverse impact, including cumulative impact, on the vitality and viability of the Town Centre’ as provided by the parts of policy D4 immediately following the amended text. That is a ‘sequential approach to site selection’.

The words in D4 that the inspector replaced with MM11 are neither entirely accurate as a reference to NPPF paragraph 24 (because there it is a test, not merely an approach), nor are they necessary, because the NPPF provisions apply to the consideration of applications whether or not paragraph 24 is incorporated in a local plan; and the test is referred to specifically in paragraph 4.4.9 of D4. No doubt the inspector was concerned to make the minimum change to the submitted document in the light of her duty to recommend only such modifications as would render it sound. What she has done is to incorporate both the hierarchy and the sequential test into one paragraph. The test strictly so called applies between the centres taken as a whole on the one hand and the non-centre sites listed at the end on the other. The hierarchy applies between the centres, with the Town Centre at the top. Because the effect of the sequential test is that all centres have precedence over any edge-of-centre or out-of-centre development, the result is in accordance with paragraphs 23 and 24 of the NPPF, provided that it is not applied as a test (as distinct from an approach) all the way down the list. The result is perhaps a little odd, but it is not unlawful, and does preserve the substance of both the hierarchy and the sequential test.

It would be possible to disagree with the inspector’s conclusion that the submitted document as modified by her would provide sufficient protection to the Town Centre for the Core Strategy as modified to be sound; but that is not a matter for the Court. The inspector is not shown to have made the error alleged. It cannot be said that the protection offered by the hierarchy could not have the effect she thought, or that her view about the protection afforded by the hierarchy was otherwise irrational. She was entitled to reach that view, and the Council was entitled to act on it by adopting the Core Strategy as modified.

Ground 2 argues that there was no Sustainability Assessment (SA) of the Core Strategy in the form recommended by the inspector for adoption, and adopted by the council, and that the adoption of the Core Strategy in this form was therefore unlawful. Mr Boyle’s position is that the Sustainability Assessment before the inspector (or perhaps, the only adequate Sustainability Assessment before the inspector) was of a Core Strategy that did not include SHRP as a DSC, so the Strategy with it as a DSC had not been the subject of appraisal.

I have set out or summarised the relevant statutory provisions above. The local planning authority has to carry out an appraisal of the sustainability of the proposals in any DPD and produce a report: s 19(5). That is therefore a requirement of s 19, compliance with which is one of the matters to be considered in the inspector’s examination of the document, and the document cannot be recommended for adoption unless those requirements (amongst others) are satisfied (s 20(5)(a) and (7)) and reg 30 of the 2004 Regulations required that report to be amongst the documents submitted with the DPD for examination by the inspector. So far as s 20(7C) is concerned, the position is that the inspector’s duty to recommend modifications is to do so in such a way that the document as modified meets these requirements. That is clear from s 20(7C)(a). Because of the division of subject matter between paragraphs (a) and (b) (the latter relating to soundness) there is perhaps room for doubt about whether there has to be a specific request from the planning authority to consider modifications that would enable compliance with these requirements. As I have indicated, the request in the present case related only to modifications that would make the Strategy sound, and there was no request to make modifications that would enable it to comply with the other statutory requirements.

Directive 2001/42/EC, “the SEA Directive”, requires a strategic environmental assessment of plans such as the Core Strategy. It is transposed into domestic law for present purposes through section 19(5) of the 2004 Act, and the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633). Regulation 5 requires there to be an environmental assessment, in accordance with Part 3 of the Regulations, during the preparation of the relevant plan and before its adoption. By reg 8, a plan is not to be adopted until account has been taken of the sustainability appraisal and consultation responses. The process for undertaking the appraisal and its required contents are set out in Part 3 of the Regulations.

The formal position is as follows. The SA submitted in accordance with reg 30 was dated 31 January 2012, assessing the Core Strategy as printed and submitted, with SHRP designated as a DSC. There was an SA in April 2012, assessing the Core Strategy as amended in accordance with the Council’s suggestion, that is to say with SHRP not designated as a DSC. There was an SA in June 2012 assessing the Strategy as so modified, with the addition of (amongst other things) what became MM11. There was no SA of the Core Strategy modified by MM11 but with SHRP designated as a DSC, that is to say as recommended by the inspector for adoption. The inspector listed the question whether the designation of SHRP had been subject to SA as one of the issues for her examination. Her decision includes statements that all the modifications of the submitted document that go to soundness had been subject to SA where necessary, (at paragraph 4) and that adequate SAs had been carried out (in paragraph 77 under the heading ‘Legal Requirements’). Further comment is in paragraphs 65-66, which I have set out above. Her overall conclusion on this issue was that everything that needed an SA had had one, so that the requirements of s 20(7C)(a) were met.

Clearly the required SA has to be found in the 31 January SA (which alone considered the option recommended by the inspector) either by itself or in conjunction with other SAs. The question is therefore whether the required SA can be found in that way, and whether, if it can, the lack of any consideration of the combination of SHRP as a DSC with MM11 means that there has been no adequate SA of the Strategy as adopted.

The authorities show that there must be an assessment of reasonable alternatives to the chosen option, so that there can be a reasoned evaluative process of the environmental impact of the proposal: see Heard v Broadland District Council [2012] EWHC 344 (Admin) at [69]-[71], although in the present case there is no dispute about what alternatives ought to be considered. The reasons for the rejection of alternatives may be found in a combination of documents, provided that they are readily enough discoverable to fulfil together the purpose of requiring an SA. I derive that proposition from the judgment of Collins J in Save Historic Newmarket v Forest Heath District Council [2011] EWHC 606 (Admin) particularly at [17] and [40]. In that case the SA under consideration was that produced in accordance with reg 30; that being the result of an iterative process under which various alternatives had already been excluded before the reg 30 stage, there was no treatment of those decisions in the SA. Collins J held that the decisions in relation to those alternatives could, for the purpose of determining whether there had been an effective SA, lawfully have been left to be derived from earlier documents: he held, however, on the facts of the case, that the lack of ready accessibility to them prevented proper appreciation of those alternatives as a subject of consultation. In my judgment it follows that at any stage when an SA falls to be considered, the question is whether, in the documents reasonably accessible to those interested, there is to be found the necessary treatment of alternatives, so that a consultation or examination process can be properly informed about them.

Not every new proposal requires a new assessment. As Ouseley J said in the HS2 case, R (Bucks CC) v Secretary of State [2013] EWHC 481 (Admin) at [183]:

“The SEA process would be absurd if no changes could be made to the plan assessed in the SEA without triggering a further SEA, and doing so because of the fact of change alone, regardless of the promoter's view of its significance, reviewable on Wednesbury grounds. The iterations would be endless or there would come a point at which a consultation process would be pointless since it could lead to no further modifications.”

The claimant’s attitude to the 31 January SA has varied over time. The original grounds of challenge referred to it as an SA of the printed document, making the point that that was not an SA of the modified Strategy the Council now asked to be considered. So at that stage it looks as though the claimant’s position was that there had been an SA of the decision to include SHRP as a DSC, because that was a feature of the submitted document. But the 31 January SA is not mentioned in Mr Boyle’s skeleton argument for the hearing. His response to the other parties’ skeletons, in a note prepared for the second day of the hearing, is to say that to draw attention to the 31 January SA as dealing with the possibility of including SHRP as a DSC is to mistake form for substance

“The January SA was (a) not an SA of the sound CS as submitted by the LPA to the 2^nd D; (b) not an SA of the CS as adopted; and (c) was either so ‘high level’ as to not assess the impact of designation of SHRP on achieving either Objective 3 or option 13 or (d) was simply wrong, as the April SA contradicted it and concluded that it was the exclusion of SHRP which would score positively. Given the terms of the April and June SA – whose findings the Inspector did not dispute – the SA of the CS as adopted must include an express assessment of the impact of including SHRP and the reason for preferring that option. There is no document that does that”

Study of the January and April SAs reveals that neither can properly be said to be at a higher level than the other. The April SA was specifically directed to the proposal removing the designation of SHRP as a DSC, and there are additions in two places asserting that that change will direct focus to the Town Centre. But it is notable that the concluding 'Assessment of Significance' is identical in the two SAs:

“This policy [D4] should result in an increase of retail provision in the Town Centre, which will support the economic growth of Eastbourne. There will as a result, be the opportunity to improve the public realm and to include the provision of renewable energy technologies in any new developments.”

Thus the overall assessment is that retail provision in the Town Centre will increase whether or not SHRP is a DSC. That no doubt is the result of the application of the hierarchy. The accompanying statement by the Council argues that designation as a DSC is neither necessary for SHRP nor desirable in the interests of promoting the town centre, is not supported by a shopping survey five years previously, and is supported by no positive evidence. But that was an argument that the inspector could accept or reject. Her task was to determine whether the removal of SHRP's designation was necessary to make the Strategy sound, not to decide ab initio whether SHRP should be designated as a DSC. The SAs do not unequivocally call for SHRP not to be so designated. Taken together, they indicate that there may be a loss of focus on the Town Centre if SHRP is designated, but that it will make little difference to the growth of retail provision there, and the economic growth of Eastbourne.

In these circumstances the inspector was clearly entitled to say that the choice whether to designate SHRP or not had been the subject of SAs. So far as concerns the addition of MM11, although the inspector considered that that modification was needed for the purpose of soundness, the claimant does not say that the addition of MM11 made any substantive difference to a Strategy including SHRP as a DSC, and I agree with the other parties that there is no basis for saying that it did. Even the inspector did not think that it did: she said at paragraph 64 of her decision that the purpose of MM11 was to ‘spell out more clearly’ what would have been the position without the modification. The lack of an SA specifically considering the submitted document as modified by MM11 was no bar to the inspector’s recommendation or the Council’s adoption of the Strategy.

That the January SA was 'simply wrong' is an untenable view in the light of the similarity to the April one. That the January SA was not an SA of the Council's position in January is irrelevant: it was an SA of the submitted document. The claimant's case in relation to the SA is a formal legal one: it is that no sufficient SA existed. I reject that argument: the material to be found in the submission SA and the April SA together were sufficient to meet the requirements of the law despite the absence of reference in them to MM11.

The remaining ground is a complaint that the Council failed to consult the claimant in relation to the Main Modifications proposed by the inspector as necessary under s 20(7C). The Council sent out a number of letters to various individuals and bodies inviting representations; it did not send such a letter to the claimant, and it has accepted that that was a mistake. But, as Mr Jefferson Collard’s witness statement shows, the Council gave notice of the proposed Main Modifications on its website, with a special process for submitting responses; it deposited notice of the Main Modifications at its various Deposit Centres, where Council Documents are available to the public, and it put gave notice of the consultation in the Eastbourne Herald.

I do not accept, Mr Boyle’s submission that reg 23 of the 2012 Regulations required consultation in relation to proposed s 20(7C) modifications. Regulation 23 requires the inspector to take into account consultation responses made under 2012 reg 20 (old reg 28), that is responses prior to submission of the document for examination. It is clear, however, that the inspector directed that there be consultation; she said that any modifications proposed by the Council after the close of the examination would be subject to consultation and would be placed on the Council’s website. Publication on the website was a process of consultation used by the Council, and the notifications actually given of the consultation in this case are clearly in general terms adequate. The claimant says that it was entitled to an individual notice that a consultation process was running. That entitlement would have to be derived from the law, or a promise, or a legitimate expectation. There was no legal requirement to notify the claimant individually, and there was no express promise to do so. Although there had been a great deal of correspondence between the claimant and the Council, including in relation to previous consultations, I can see nothing to support a view that the claimant had a legitimate expectation of being individually notified of future consultations, giving rise to a claim that the consultation process would be invalidated by failure to give such notice. Custom in relation to consultation before the examination does become law in relation to a subsequent examination directed by the inspector.

Further, the claimant has wholly failed to explain whether, or if so why, it failed to observe that a matter of such importance to it had been widely publicised, and had been notified in the manner envisaged by the inspector. In these circumstances there is simply no basis for saying that the notice of the consultation that was given was not sufficient for the purpose of alerting the claimant. The claimant is not shown to have been denied the opportunity to make representations; nor has the claimant shown that the failure to send individual notice has prejudiced it in any way, bearing in mind the publicity the consultation had.

Finally, it is very difficult to see what it is that substantively the claimant says it was deprived of the chance to say. Mr Boyle’s submission after hearing what was said on behalf of the other parties was that ‘the substantive complaint is that there was no consultation on modifying D4 in a way which included SHRP as a town centre’. But the consultation was on modifications to the submitted document, and the retention of the designation of SHRP as a DSC was not a modification. It seems to me that even if the claimant had established an expectation of individual notification there would be no good reason to grant relief on this ground.

For the foregoing reason this claim fails and will be dismissed.