R Gladman Developments Ltd v Aylesbury Vale District Council Winslow Town Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] EWHC 4323 (Admin) |
| Docket Number | Case No: CO/3104/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 December 2014 |
and
[2014] EWHC 4323 (Admin)
Mr Justice Lewis
Case No: CO/3104/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Kingston QC and James Corbet Burcher (instructed by Irwin Mitchell LLP) for the Claimant
Hereward Phillpot (instructed by Aylesbury Vale District Council) for the Defendant
Hearing dates: 11 th & 12 th December 2014
INTRODUCTION
This is a claim for judicial review of a decision of Aylesbury Vale District Council ("the Council") of 10 September 2014 making the Winslow Neighbourhood Plan ("the Neighbourhood Plan"). Winslow is a market town in Buckinghamshire with 4,500 residents. In summary, Policy 2 of the Neighbourhood Plan established a settlement boundary and provided that development outside the settlement boundary would only be permitted in exceptional circumstances. Policy 3 allocated land for sites within the settlement boundary for an indicative number of 455 new dwellings.
The claimant is a developer. It wished to develop three sites in the Winslow neighbourhood area. Its sites were outside the settlement boundary identified in Policy 2 and were not allocated as sites for housing under Policy 3. The claimant challenges the lawfulness of the Neighbourhood Plan and seeks to challenge the reasoning of an examiner who examined the Neighbourhood Plan prior to its adoption and recommended that it be submitted to a referendum and, by extension, the lawfulness of the decision of the Council to make the Neighbourhood Plan following a vote in favour of the Neighbourhood Plan at the referendum held in July 2014.
The principal complaint is that it was not permissible for the Neighbourhood Plan to include policies relating to a settlement boundary or the allocation of sites for housing at a time when the local planning authority had not yet adopted a development plan document containing strategic policies for meeting the objectively assessed housing needs of the district.
The claimant also contends that the examiner failed to have regard to relevant planning guidance when considering the site assessment carried out as part of the process of preparing the Neighbourhood Plan. The claimant further contends that the examiner failed properly to assess whether the Neighbourhood Plan satisfied the requirement relating to the preparation of a strategic environmental assessment report. Finally the claimant contends that the examiner failed to give adequate, intelligible reasons for his conclusions.
THE LEGAL FRAMEWORK
Planning permission is required for development: see section 57 of the 1990 Act. The Section 70 (2) of that Act provides, so far as material, that, in dealing with such an application the authority shall have regard to:
"(a) the provisions of the development plan, so far as material to the application;
(b) any local finance considerations, so far as material to the application; and
any other material considerations."
The Development Plan
Development plans are dealt with in section 38 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). The material provisions provide as follows:
"(3) For the purposes of any other area in England the development plan is–
(a) the regional strategy for the region in which the area is situated (if there is a regional strategy for that region), and
(b) the development plan documents (taken as a whole) which have been adopted or approved in relation to that area, and
(c) the neighbourhood development plans which have been made in relation to that area.
…..
" (5) If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan the conflict must be resolved in favour of the policy which is contained in the last document to be adopted, approved or published (as the case may be)."
Regional strategies in England have been revoked. For present purposes, therefore, the development plan will consist of two categories of documents:
(1) the development plan documents; and
(2) the neighbourhood development plan.
The development plan has particular significance in terms of the operation of the planning system. Section 38(6) of the 2004 Act provides that:
"(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
That subsection applies to, amongst others, decisions on applications for planning permission for development (see section 70 of the 1990 Act). If proposed development conflicts with the development plan, permission will be refused unless material planning considerations indicate otherwise.
Development Plan Documents.
Local development schemes are dealt with in Part 2 of the 2004 Act. In summary, section 15(1) of the 2004 Act requires a local planning authority to prepare and maintain a scheme to be known as their local development scheme. Section 17(3) of the 2004 Act provides that:
"(3) The local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area."
Section 15(2)(aa) of the 2004 Act provides that the local development scheme must specify which local development documents are to be "development plan documents". Such documents are development plan documents for the purpose of (and form part of) the development plan (see section 38(9) and 37(3) of the 2004 Act.
There are provisions governing the preparation of local development plan documents in section 19 of the 2004 Act. They must also be submitted by the Secretary of State for examination by a person appointed by him. The independent inspector will determine whether the development plan document meets relevant statutory requirements and is sound and whether the authority has complied with relevant duties relating to its preparation including the duty to co-operate with other specified bodies: see section 20 of the 2004 Act.
Neighbourhood Development Plans
Amendments to the 2004 Act were made by the Localism Act 2011. Those amendments provide for a process whereby parish councils or bodies designated as neighbourhood forums could initiate the making of a neighbourhood development plan. The provisions provide for an independent examination of a neighbourhood development plan. The examiner may recommend that the plan, with or without modification, is submitted to a referendum. If more than half of those voting at a referendum vote in favour of the plan, the local planning authority must make the neighbourhood development plan.
For present purposes, the material provisions of section 38A of the 2004 Act provide as follows:
" 38A Meaning of "neighbourhood development plan"
"(1) Any qualifying body is entitled to initiate a process for the purpose of requiring a local planning authority in England to make a neighbourhood development plan.
"(2) 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.
"(3) Schedule 4B to the principal Act, which makes provision about the process for the making of neighbourhood development orders, including—
(a) provision for independent examination of orders proposed by qualifying bodies, and
(b) provision for the holding of referendums on orders proposed by those bodies,
is to apply in relation to neighbourhood development plans (subject to the modifications set out in section 38C(5) of this Act).
"(4) A local planning authority to whom a proposal for the making of a neighbourhood development plan has been made—
(a) must make a neighbourhood development plan to which the proposal relates if in each applicable referendum under that Schedule (as so applied) more than half of those voting have voted in favour of the plan, and
(b) if paragraph (a) applies, must make the plan as soon as reasonably practicable after the referendum is held."
A qualifying body is a parish council or an organisation or body designated as a neighbourhood forum authorised to act for a neighbourhood area for the purposes of a neighbourhood development plan: see section 38A(12) of the 2004 Act. Section 38B(1) of the 2004 Act prescribes the provision that may be made by neighbourhood development plans in that they must specify the period for which they are to have effect, may not include provision about excluded developments as defined and may not relate to more than one neighbourhood area.
Schedule 4B to the 1990 Act, with modifications, is applied to the process of preparing and making a neighbourhood plan: see sections 38A(5) and 38C(5) to the 2004 Act. For present purposes, the material provisions provide as follows. Paragraph 7 requires the local authority to submit a draft neighbourhood plan for independent examination. Paragraph 8(1) of Schedule 4B to the 2004 Act, as modified by section 38C(5)(d) of the 2004 Act, provides so far as material, as follows:
"(1) The examiner must consider the following—"
(a) whether the draft neighbourhood development order meets the basic conditions (see sub-paragraph (2)),
(b) whether the draft order complies with the provision made by or under sections 38A and 38B of ...
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