Bewley Homes Plc and Others v Waverley Borough Council Farnham Town Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 18 July 2017 |
| Neutral Citation | [2017] EWHC 1776 (Admin) |
| Date | 18 July 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1830/2017 |
[2017] EWHC 1776 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/1830/2017
The Queen on the application of
Rupert Warren QC (instructed by Pitmans LLP, Cripps LLP and Eversheds Sutherland (International) LLP) for the Claimants
Clare Parry (instructed by Sharpe Pritchard LLP) for the Defendant
Lisa Busch QC (instructed by Kidd Rapinet LLP) for the Interested Party
Hearing dates: 15 & 16 June 2017
Approved Judgment
The Claimants seek judicial review of the decision of the Defendant ("Waverley"), made on 10 March 2017, that the draft Farnham Neighbourhood Development Plan 2013 – 2031 ("the dFNP") met the "basic conditions" for a lawful neighbourhood plan, pursuant to paragraphs 8(2) and 12 of Schedule 4B to the Town and Country Planning Act 1990 ("TCPA 1990"), in the light of the Examiner's report.
The Examiner (Derek A. Stubbing B.A Hons, Dip. E.P., MRTPI) undertook an examination for Waverley on the July 2016 version of the dFNP. As well as receiving written representations and evidence, he held site visits and an oral hearing, and produced a report dated 22 February 2017.
On the 4 May 2017 the plan was put to a referendum. The dFNP was passed by 10,044 votes in favour (with 1,097 votes against). Pursuant to an agreement reached between the parties, Waverley has agreed not to make the dFNP, pending the outcome of this application.
Because of the urgency of the matter, Holgate J. ordered on 28 April 2017 that it should proceed as a rolled-up hearing, determining the question of permission and, if appropriate, the substantive judicial review at the same hearing.
The dFNP was promoted by the Interested Party ("Farnham"). The area covered by the dFNP was the entire administrative area of Farnham Town Council. It was a response to concerns that, in the absence of an up-to-date development plan (the Local Plan was only intended to cover the period 2002 to 2006), development was taking place by means of ad hoc grants of planning permission, instead of being plan-led, in accordance with the principles in the National Planning Policy Framework ("NPPF") at 17. In the absence of an up-to-date development plan, developers applying for planning permission benefited from the weighted presumption in favour of development in NPPF 14 (second bullet point) which, in Farnham's view, was the antithesis of the plan-led system. Farnham therefore utilised the powers introduced in the Localism Act 2011 to promote a neighbourhood plan, designed to empower local communities to shape their surroundings.
The dFNP 2013 was wide-ranging, and sought to meet the identified needs of the area for the period up to 2031. According to Farnham, it sought to strike an appropriate balance between maintaining the environmental protections in the existing Local Plan, whilst having regard inter alia to the housing supply policies in Waverley's emerging Local Plan. The dFNP identified development potential for some 2,000 new dwellings, including allocations for some 784 dwellings.
The Claimants are housing developers who participated in the dFNP process because they hold interests in land in the Farnham area, which they wish to develop.
The First Claimant, Bewley Homes Plc, has an interest in land at Lower Weybourne Lane, Badshot Lea. It has an outstanding appeal seeking planning permission for 140 dwellings on this site. The appeal decision has been recovered by the Secretary of State. Despite the First Claimant's representations, this site was not allocated for housing in the dFNP.
The Second Claimant, Wates Developments Limited, has an interest in land at Waverley Lane, Farnham and recently pursued an appeal at a public inquiry seeking planning permission for up to 157 dwellings on that land. This decision has also been recovered by the Secretary of State. The Second Claimant was aggrieved by the dFNP because it concluded that no housing at all should be allocated to its site due to its "high landscape value" and "high landscape sensitivity". The Second Claimant disputed this finding, and the evidence upon which it was based.
The Third Claimant, Catesby Estates (Developments) Ltd, has an interest in land west of Folly Hill, Farnham. Jointly with the First Claimant, it has an outstanding appeal relating to land south of the junction with Upper Old Park Lane, Folly Hill, Farnham for the erection of 102 dwellings and the provision of on-site SANG ("Suitable Alternative Natural Greenspace"). The site was also not allocated for housing in the dFNP.
The Claimants submitted that the decision not to allocate their respective sites for allocation might not have been made had the alleged legal errors been avoided. At the heart of their claim was the submission that the dFNP ought not to have been made until after Waverley had adopted the emerging Local Plan, and thus updated the relevant local policies.
Legal framework
(1) Legislation
A "neighbourhood development plan" is a plan which "sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan": section 38A(2), Planning and Compulsory Purchase Act 2004 ("the PCPA 2004").
A "neighbourhood development plan" is part of the statutory development plan for the area it covers: section 38(3)(c), PCPA 2004.
Where a neighbourhood development plan is to be prepared, a "qualifying body" must make an application to the local planning authority for the designation of an area as a "neighbourhood area": Part 2, Neighbourhood Planning (General) Regulations 2012 ("the 2012 Regulations").
The draft neighbourhood development plan, once prepared, must be consulted upon ( reg. 14, 2012 Regulations), submitted to the local planning authority (reg. 15) and then publicised by the local planning authority (reg. 16).
Schedule 4B to the TCPA 1990 applies to the making of neighbourhood development plans: section 38A(3), PCPA 2004. Paragraph 7 of Schedule 4B requires a local planning authority to submit a draft neighbourhood development plan, after it has been publicised, to independent examination if the requirements of paragraph 6(2) of Schedule 4B are met. The examiner must then consider whether the draft neighbourhood development plan meets the specified statutory requirements, in particular, whether it meets the "basic conditions": Schedule 4B, paragraph 8(1)(a).
Paragraph 8(2) provides, so far as is material here:
"(2) A draft order meets the basic conditions if—
(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the order,
………
(d) the making of the order contributes to the achievement of sustainable development,
(e) the making of the order is in general conformity with the strategic policies contained in the development plan for the area of the authority (or any part of that area),
(f) the making of the order does not breach, and is otherwise compatible with, EU obligations, and
(g) prescribed conditions are met in relation to the order and prescribed matters have been complied with in connection with the proposal for the order."
An examiner must produce a report. Paragraph 10 of Schedule 4B makes further provision for the duties of the independent examiner:
"(1) The examiner must make a report on the draft order containing recommendations in accordance with this paragraph (and no other recommendations).
(2) The report must recommend either —
(a) that the draft order is submitted to a referendum, or
(b) that modifications specified in the report are made to the draft order and that the draft order as modified is submitted to a referendum, or
(c) that the proposal for the order is refused.
(3) The only modifications that may be recommended are –
(a) modifications that the examiner considers need to be made to secure that the draft order meets the basic conditions in paragraph 8(2),
[…]
(e) modifications for the purpose of correcting errors.
(4) The report may not recommend that an order (with or without modifications) is submitted to a referendum if the examiner considers that the order does not –
(a) meet the basic conditions mentioned in paragraph 8(2), or
[…]
(6) The report must —
(a) give reasons for each of its recommendations, and
(b) contain a summary of its main findings."
After receiving an examiner's report, the local planning authority must consider each of the recommendations made and decide what action to take: Schedule 4B, para. 12(2). If the authority is satisfied that the draft neighbourhood plan meets the basic conditions, and is compatible with Convention rights and complies with sections 61E(2), 61J and 61L of the TCPA 1990, it "must" hold a local referendum on it: Schedule 4B, para. 12(4). If more than half of those voting in the referendum vote in favour of it, the local planning authority must "make" the neighbourhood plan unless to do so would breach "any EU obligation or any of the Convention rights": s. 38A(4) and (6), PCPA 2004.
(2) National policy and guidance
The NPPF sets out policy in respect of neighbourhood plans, under the following headings:
"Core planning principles
17. Within the overarching roles that the planning system ought to play, a set of core land-use planning principles should underpin both plan-making and decision-taking. These 12 principles are that planning should:
• be genuinely plan-led, empowering local people to shape their surroundings, with succinct local and...
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