R Lochailort Investments Ltd v Mendip District Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 11 May 2020 |
| Neutral Citation | [2020] EWHC 1146 (Admin) |
| Docket Number | Case No: CO/3929/2019 |
| Date | 11 May 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 1146 (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/3929/2019
Richard Ground QC and Ben Du Feu (instructed by Harrison Grant Solicitors) for the Claimant
Hashi Mohamed (instructed by Law & Governance – Shape Partnership Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 24 March 2020
Approved Judgment
INDEX
| Topic | Page no. |
| Statutory and policy framework | 3 |
| Legislation | 3 |
| National policy and guidance | 7 |
| Planning history | 13 |
| NSP NP | 13 |
| Local Plan | 17 |
| Grounds of challenge | 24 |
| Conclusions | 24 |
| Legal challenges under s.61N(2) TCPA 1990 | 24 |
| Case law | 25 |
| Grounds 1 and 3 | 31 |
| Ground 2 | 47 |
The Claimant applies for judicial review of the Defendant's decision, made on 2 September 2019, to accept the recommendations of the Examiner into the draft Norton St Philip Neighbourhood Plan (“the NSP NP”) under paragraph 12 of Schedule 4B to the Town and Country Planning Act 1990 (“TCPA 1990”), and to proceed to a referendum.
Norton St Philip (“NSP”) is an historic village in a rural area of Somerset with a population of around 858 people (2011 census). The NSP NP has been prepared by the NSP Parish Council, in consultation with the local community. It includes a Local Green Space (“LGS”) policy, which proposes ten sites to be designated as LGSs. This challenge centres on two of these sites — LGSNSP007 Fortescue Fields South (“LGS7”) and LGSNSP008 Fortescue Fields West (“LGS8”) – which the Claimant contends were erroneously designated as LGS.
The NSP NP has been examined by an independent Examiner who concluded that the NSP NP, as modified in accordance with her recommendations, met the statutory requirements, and could proceed to a referendum. The Defendant (the local planning authority) accepted the Examiner's conclusions at its meeting on 2 September 2019 and resolved that the NSP NP be modified in accordance with the Examiner's recommendations, and then proceed to a referendum.
The Claimant is a property developer which has purchased a number of sites in NSP for potential development. The Claimant has promoted these sites for housing allocation in the ongoing examination into the emerging Mendip District Council Local Plan 2006 – 2029 Part II (“LPP2”). The Defendant has proposed for housing allocation two parcels of land in NSP owned by the Claimant, which are not LGS, namely, Laverton Triangle and Fortescue Fields South East, comprising Site NSP1.
On 12 December 2019, the Claimant applied to the Defendant for planning permission for housing, community buildings and other works, on Site NSP1, as well as other sites, including part of LGS7 and LGS8, which have not been proposed or allocated for housing. The application for planning permission will be determined after the conclusion of the judicial review claim.
The claim, which was brought pursuant to section 61N(2) TCPA 1990, was issued on 8 October 2019. By an order sealed on 11 October 2019, the Claimant was granted interim relief, prohibiting the Defendant from proceeding to hold a referendum until the disposal of the judicial review claim, or further order.
Permission to apply for judicial review was granted on the papers on 4 December 2019.
Statutory and policy 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) of the 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.
The provisions of Schedule 4B TCPA 1990, which make provision for the making of neighbourhood development orders, apply also to the making of neighbourhood development plans: sections 38A(3) and 38C(5) PCPA 2004.
A qualifying body may initiate a process for the purpose of requiring a local planning authority to make a neighbourhood development plan: section 38A(1) PCPA 2004. A qualifying body is defined in section 38A(12) PCPA 2004 and includes a parish council.
The draft neighbourhood development plan, once prepared, must be consulted upon (regulation 14 of the Neighbourhood Planning (General) Regulations 2012 (“the 2012 Regulations”)) and submitted to the local planning authority, with inter alia a consultation statement (regulation 15 of the 2012 Regulations).
The draft neighbourhood development plan must be publicised by the local planning authority, giving persons an opportunity to make representations upon it (regulation 16 of the 2012 Regulations).
Paragraph 7 of Schedule 4B TCPA 1990 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. This is provided for in regulation 17 of the 2012 Regulations.
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:
“(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 as follows, so far as is material:
“(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),
(b) modifications that the authority need to be made to secure that the draft order is compatible with Convention rights,
(c) modifications that the authority consider need to be made to secure that the draft order complies with the provision made by or under sections 61E(2), 61J and 61L,”
…
(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. It must then publish its decision, with reasons, in the manner prescribed by regulation 18 of the 2012 Regulations.
Paragraph 12 of Schedule 4B provides, so far as is material:
“(1) This paragraph applies if an Examiner has made a report under paragraph 10.
(2) The local planning authority must –
(a) consider each of the recommendations made by the report (and the reasons for them), and
(b) decide what action to take in response to each recommendation.
(3) ..…
(4) If the authority are satisfied –
(a) that the draft order meets the basic conditions mentioned in paragraph 8(2), is compatible with the Convention rights and complies with the provision made by or under sections 61E(2), 61J and 61L, or
(b) that the draft order would meet those conditions, be compatible with those rights and comply with that provision if modifications were made to the draft order (whether or not recommended by the Examiner),
a referendum in accordance with paragraph 14, and (if applicable) an additional referendum in accordance with paragraph 15, must be held on the making by the authority of a neighbourhood development order.
(5) ….
(6) The only modifications that the authority may make are—
(a) modifications that the authority consider need to be made to secure that the draft order meets the basic conditions mentioned in paragraph 8(2),
(b) modifications that the authority need to be made to secure that the draft order is compatible with Convention rights,
(c) modifications that the authority consider need to be made to secure that the draft order complies with the provision made by or under sections 61E(2), 61J and 61L,”
……
(e) modifications for the purpose of correcting errors.
(7) – (10) …..
(11) The authority must publish in such manner as may be prescribed –
(a) the decisions they make under this paragraph,
(b) their reasons for making those decisions, and
(c) such other...
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The Queen (on the Application of Lochailort Investments Ltd) v Mendip District Council
...managing development of ten parcels of land designated as Local Green Spaces (“LGSs”). Lang J held that it did. Her judgment is at [2020] EWHC 1146 (Admin). It contains a fuller recitation of the facts than is necessary for the purposes of this appeal; and the reader is referred to it for ......