R (Crownhall Estates Ltd) v Chichester District Council Loxwood Parish Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 21 January 2016 |
| Neutral Citation | [2016] EWHC 73 (Admin) |
| Docket Number | Case No: CO/1812/2015 and CO/2669/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 January 2016 |
[2016] EWHC 73 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/1812/2015 and CO/2669/2015
-and-
Richard Harwood QC and Daniel Stedman Jones (instructed by SDK Law) for the Claimant
Stephen Morgan (instructed by Ms Nicola Golding, Chichester District Council) for the Defendant
The Interested Party were not represented
Hearing dates: 18 th and 19 th November 2015
Introduction
The Claimant, Crownhall Estates Limited ("Crownhall"), is promoting the development of 25 dwellings on a site in the village of Loxwood, West Sussex, known as "Land to the South of Loxwood Farm Place" ("the Crownhall site").
The Defendant, Chichester District Council ("CDC"), is the local planning authority for its area. On 14 July 2015 CDC decided to adopt the Chichester Local Plan: Key Policies 2014–2029 ("the Local Plan"). The Local Plan forms part of the statutory development plan for CDC's district, including Loxwood. The Court was informed that Crownhall did not submit any objections to the draft versions of the Local Plan and has not made any application in the High Court to challenge that plan.
The Interested Party, Loxwood Parish Council ("LPC"), is a "qualifying body" for the area of Loxwood Parish under section 61E of the Town and Country Planning Act 1990 ("TCPA 1990"). Under section 38A of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") it initiated the process for making a neighbourhood development plan. On 8 March 2013 CDC designated the whole of the parish as a neighbourhood planning area. Between 4 November and 15 December 2013 public consultation took place on the pre-submission draft of the Loxwood Neighbourhood Plan 2013 to 2029 ("the LNP"). Between 17 January and 28 February 2014 CDC organised a further round of public consultation on the submission draft of the LNP. The submission draft and the representations made in that consultation process were then submitted to an independent Examiner for the statutory examination of the plan in accordance with paragraphs 7 to 12 of schedule 4B to TCPA 1990. On 11 April 2014 the Examiner produced a report to CDC on the examination. Because CDC was satisfied that the draft LNP satisfied the "basic conditions" in paragraph 8(2) of schedule 4B, it was obliged to hold a local referendum under para 14. The referendum was held on 24 July 2014 and 97.7% of those voting, voted in favour of the plan and so CDC became obliged under section 38A(4) of PCPA 2004 to make the LNP.
In July 2014 Crownhall brought its first claim for judicial review under section 61N of TCPA 1990 in relation to the LNP. On 20 October 2014 the High Court made a consent order quashing CDC's decision to hold the referendum and also the subsequent referendum on the grounds that the Environmental Assessment of Plans and Programmes Regulations 2004 had not been complied with. In particular it was accepted that the process for making a screening decision that Strategic Environmental Assessment ("SEA") was not required for the LNP had been unlawful. Subsequently, a lawful screening process was carried out by CDC which determined that SEA was not required for the LNP. Crownhall has not raised any legal challenge to that decision. It is common ground that the consent order made in October 2014 on the first judicial review has no further implications for the present proceedings.
Between 23 October and 4 December 2014 a fresh round of public consultation took a place on a resubmitted draft of the LNP. Twenty representations were made, some supporting the LNP in its entirety. Crownhall made representations objecting that the LNP had not identified the Crownhall site for housing. As is normally the case (see paragraph 9(1) of Schedule 4B to TCPA 1990), the examination followed the written representations procedure and so no hearing was held by the Examiner. No complaint is made regarding the decision not to hold a hearing.
On 25 February 2015 the Examiner sent her report on the examination of the re-submitted LNP to CDC. She recommended that, subject to modifications set out in the report, the LNP satisfied the "basic conditions" and should proceed to a referendum. CDC agreed and therefore came under a duty once again to hold a local referendum.
At this stage, following pre-action correspondence with CDC, Crownhall issued a second application for judicial review on 20 April 2015 (CO/1812/2015). The claim included a ground that the decision by an officer to accept the Examiner's recommendation and to hold a referendum was taken outside the scope of delegated authority. That ground was overtaken by a fresh decision taken by CDC's Cabinet on 24 April 2015 to accept the Examiner's recommendation and to hold a referendum. On 5 June 2015 Dove J granted Crownhall permission to apply for judicial review on all grounds save for the challenge to the earlier reliance upon delegated authority.
On 25 June 2015 the local referendum on the re-submitted LNP was held pursuant to the Cabinet's decision on 24 April 2015. On this occasion 98.5% of those voting, voted in favour of the making of the LNP. In the meantime on 8 June 2015 Crownhall had issued its third proceedings for judicial review (CO/2669/2015) challenging the decision in April 2015 to hold the referendum and seeking an order to quash that decision.
On 14 July 2015, the same day as it adopted the local plan, CDC also made the LNP under section 38(4) of the PCPA 2004.
On 5 th August 2015 Cranston J granted Crownhall permission to apply for judicial review in the third claim and ordered that (a) the second and third claims be consolidated and (b) the Statement of Facts and Grounds in the third claim should also stand as the Claimant's grounds in the second claim. On 24 September 2015 Dove J made a consent order to amend the relief sought in the claim to include an order quashing the making of the LNP by CDC.
Going back to December 2013, whilst Crownhall was making representations on the draft LNP, it also submitted an application for planning permission for 25 dwellings on the Crownhall site. CDC refused the application on 25 June 2014 on a number of grounds, including conflict with the then emerging draft LNP and draft local plan. Crownhall appealed under section 78 of the TCPA 1990 to the Secretary of State for Communities and Local Government ("SSCLG") against that refusal. The appeal was recovered for determination by SSCLG. An Inspector held an inquiry into that appeal between 8 and 10 September 2015. The Inspector indicated that his report would be submitted to the SSCLG by the end of October 2015. SSCLG stated that his decision would be issued by 14 January 2016. On the advice of leading and junior counsel, on 29 October 2015 Crownhall applied for the hearing of the judicial review fixed for 18 and 19 November to be vacated and for the proceedings in the High Court to be stayed until 14 March 2016. It was said that in the event of SSCLG deciding to grant planning permission on the Crownhall site "the outcome of these proceedings will be of no effect or very limited effect". However, CDC did not consent to the application and expressed the concern that SSCLG might wish to defer his decision pending the outcome of the judicial review (paragraph 20 of the Claimant's skeleton confirms that that is the case). LPC objected to the application. On 11 November Deputy Master Knapman refused the application for an adjournment and a stay.
National Planning Policy Framework
Paragraph 14 of the National Planning Policy Framework ("NPPF") provides:-
"14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
For plan-making this means that:
• local planning authorities should positively seek opportunities to meet the development needs of their area;
• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:
— any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
— specific policies in this Framework indicate development should be restricted.
For decision-taking this means:
• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
— any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
—specific policies in this Framework indicate development should be restricted."
It is to be noted that the reference to plan-making in paragraph 14 is directed to the local plans which are to be made by local planning authorities.
Paragraph 17 of the NPPF sets out twelve core land-use planning principles which underpin both plan-making and decision-taking, of which the first and third are:
"be genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area. Plans should be kept up-to-date, and be based on joint working and co-operation to address larger than local issues. They should provide a...
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