R Maynard v Chiltern District Council Chalfont St. Peter Parish Council (Interested Party)

Introduction

The Claimant, Mr. Robert Maynard, lives with his wife at The Farm House, Winker's Farm, Denham Lane, Chalfont St Peter in Buckinghamshire. He is the owner. Up until 1990 he ran the Winker's Country Club from the premises. It comprised a restaurant and a nightclub. In 1990 the restaurant closed and since then he has operated the nightclub, Winker's Nightclub, from ground floor of the farm house. Mr. and Maynard live on the first floor.

Chiltern District Council ("CDC") is the local planning authority for its district. The interested party, Chalfont St Peter Parish Council ("CSPPC"), is in its capacity as a "qualifying body" for its area under section 38A of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") initiated the statutory process for requiring CDC to make a Neighbourhood Development Plan, the Chalfont St Peter Neighbourhood Plan ("the Neighbourhood Plan"). By section 38A(2) such a plan "sets out policies (however expressed) in relation to the development and use of the land in the whole or any part of a particular neighbourhood area specified in the plan".

Schedule 4B to the Town and Country Planning Act 1990 ("TCPA 1990") governs the process by which the plan is prepared in draft, consulted upon and independently examined, before the Local Planning Authority decides whether certain statutory conditions are satisfied so that the plan may be submitted to a referendum. If more than half of those voting in the referendum vote in favour of the plan then the Local Planning Authority must make the plan as soon as reasonably practicable thereafter (section 38A(4) of PCPA 2004). Schedule 4B is supplemented by the Neighbourhood Planning (General Regulations) 2012 SI 2012 No 637 ("the 2012 regulations").

Chapter 8 of the draft neighbourhood plan contained a policy intended to resist proposals to change the use of "community facilities" listed in Table 8.1. That table included Winker's Nightclub. The Claimant has aspirations to see his land redeveloped for small scale housing. On 16th April 2014 a developer with whom he is collaborating, Kebbell Development Ltd ("Kebbell"), made a representation under regulation 16 of the 2012 Regulations, asking for the nightclub to be removed from the list of community facilities in the Neighbourhood Plan. CDC submitted the draft neighbourhood plan for independent examination together with the representations made on the draft. In accordance with the "general rule", the examination was carried out by consideration of the written representations and no hearing was held (see paragraph 9(1) of Schedule 4B to the PCPA 2004).

On 23rd June 2014 the Examiner submitted his report to CDC. He recommended that the draft plan be modified by removing the nightclub from Table 8.1. CDC responded by deciding that it was minded not to accept that recommendation and undertook a further round of consultation on that response. On 23rd January 2015, following an appraisal of the consultation responses, CDC decided (a) to accept all of the examiner's recommended modifications save for the deletion of the nightclub from Table 8.1 and (b) that the plan in that modified form should proceed to a local referendum on 5th March 2015.

The referendum was held on that date. Nearly 79% of those voting voted in favour of the plan. However, on the same day as the referendum the Claimant issued an application for judicial review, seeking to quash the decision to reject the Examiner's recommendation to delete Winker's Nightclub from the community facility policy and to hold a referendum on the plan as modified as a result of the examination save in that one respect.

It would appear from section 61N(2) of the TCPA 1990, as applied by section 38C of PCPA 2004, that judicial review proceedings may be brought to challenge the CDC's decision on 23rd January 2015 under paragraph 12 of Schedule 4B to the TCPA 1990 (a) not to accept the Examiner's recommendation for the deletion of Winker's Nightclub from Table 8.1 of the plan and (b) to submit the plan to referendum with the nightclub included in Table 8.1. In addition section 61N(3) enables a claim for judicial review to be brought "for questioning anything relating to a referendum" under paragraph 14 of Schedule 4B to TCPA 1990.

On 11th May 2015 Foskett J granted the Claimant permission to apply for judicial review in respect of all of the grounds pleaded save for ground 5 which alleges bias.

At the hearing before me the applicant renewed his application for permission to seek judicial review on the basis of ground 5.

At the hearing the Claimant was represented by Ms Celina Colquhoun and the Defendant by Mr. Merrick Lewis. The Parish Council did not appear and was not represented.

Statutory Framework

At the heart of this hearing lies paragraph 8 of Schedule 4B of TCPA 1990, which serves, in part, to define the ambit of the statutory examination. Paragraph 8(1) requires the Examiner to consider a number of matters. Paragraph 8(6) prohibits the Examiner from considering any other matter, save for whether the draft neighbourhood plan is compatible with Convention rights. Under paragraph 8(1)(a) the Examiner must consider whether the draft plan meets the "basic conditions" defined in paragraph 8(2). Those conditions include:

"(a) having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the plan…

(e) the making of the plan 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)."

This case was argued on the basis that the legal principles regarding the process for making a neighbourhood plan laid down in the judgment of Supperstone J in BDW Trading Ltd v Cheshire West and Cheshire Borough Council [2014] EWCA 1470 (Admin) are correct.

At paragraphs 57, 61 to 62 and 129 to 133 in Woodcock Holdings Ltd v Secretary of State for Communities and Local Government [2015] EWHC 1173 (Admin) 2015 JPL 1151, I followed parts of the BDW decision which are material to this claim. The relevant principles are:-

(1) In contrast to the Examination of a development plan document, the remit of an Examiner dealing with a neighbourhood plan does not include the requirement to consider whether that plan is 'sound' (cf. section 20(5)(b) of the 2004 Act). So the requirements of 'soundness' contained in paragraph 182 of the NPPF do not apply to a neighbourhood plan. The Examiner of a neighbourhood plan does not consider whether that plan is 'justified' in the sense used in paragraph 182 of the NPPF. In other words, the Examiner does not have to consider whether a draft policy is supported by a 'proportionate evidence base';

(2) As to paragraph 8(2)(a) of Schedule 4B, whereas under paragraph 182 of the NPPF a local plan needs to be "consistent with national policy" an Examiner of a neighbourhood plan has a discretion to determine whether it is appropriate that the plan should proceed having regard to national policy. The limited role of an Examiner to have regard to national policy when considering a draft policy applicable to a small geographical area should not be confused with the more investigative scrutiny required by PCPA 2004 in order for an Inspector examining a draft Local Plan to determine whether such a plan is "sound" (see sections 20(7) to 7(C) and 23 of the PCPA 2004);

(3) As to paragraph 8(2)(e) of Schedule 4B, the basic condition only requires the Examiner to consider whether the draft neighbourhood plan as a whole is in general conformity with the adopted Development Plan as a whole. Whether there is a tension between one policy of the neighbourhood plan and one element of the Local Plan is not a matter for the Examiner to determine.

The basic conditions also control the ambit of certain other powers which may be exercised in the subsequent stages leading to the final approval of the plan. Paragraph 10 of Schedule 4B requires that after the examination:

"(1) The examiner must make a report on the draft plan containing recommendations in accordance with this paragraph (and no other recommendations).

(2) The report must recommend either—

(a) that the draft plan is submitted to a referendum, or

(b) that modifications specified in the report are made to the draft plan and that the draft plan as modified is submitted to a referendum, or

(c) that the proposal for the plan 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 plan meets the basic conditions mentioned in paragraph 8(2)

…

(e) modifications for the purpose of correcting errors.

(4) The report may not recommend that a plan (with or without modifications) is submitted to a referendum if the examiner considers that the plan does not—

(a) meet the basic conditions mentioned in paragraph 8(2), or …"

15. On receipt of the Examiner's report as provided by paragraph 12 of Schedule 4B:

"(2) The local planning authority must—

(a) consider each...