R Wilbur Developments Ltd v Hart District Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] EWHC 227 (Admin) |
| Docket Number | Case No: CO/3994/20019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 February 2020 |
[2020] EWHC 227 (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/3994/20019
Victoria Hutton (instructed by Eversheds Sutherland (International) LLP) for the Claimant
Timothy Leader (instructed by Shared Legal Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 21 January 2020
Approved Judgment
The Claimant applies for judicial review of the Defendant's decision, published on 28 August 2019, to accept the report of the Examiner into the Hook Neighbourhood Plan (“the HNP”) under paragraph 12 of Schedule 4B to the Town and Country Planning Act 1990 (“TCPA 1990”), and to proceed to a referendum. The claim is brought pursuant to section 61N(2) TCPA 1990.
Hook is a large village in the Hart district of Hampshire, and the Defendant is the local planning authority. The HNP was prepared by Hook Parish Council (the Interested Party), and submitted to the Defendant, pursuant to the provisions of Schedule 4B TCPA 1990. The Examiner recommended that the HNP should be modified, and then put to a referendum. The Defendant accepted the Examiner's recommendations. The referendum took place in October 2019 and the neighbourhood voted in favour of the HNP. However, the Defendant has undertaken not to make the HNP until this claim has been determined.
The Claimant is a venture which has been created for the sole purpose of promoting development at a site, known as Owen's Farm, between the settlements of Newnham and Hook, and it has entered into a legal agreement with the owners of Owen's Farm for that purpose. Planning permission has been refused, and Owen's Farm has not been allocated for development in the emerging local plan (“eLP”). The proposed terms of the HNP are likely to affect development at Owen's Farm in future, which has led to this challenge.
Permission to proceed with Grounds 1 and 2 of the claim was granted by Lieven J. on the papers on 14 November 2019. Lieven J. refused permission on Ground 3. The Claimant renewed its application for permission in relation to Ground 3, and the application was heard together with the substantive claim.
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 matters relating to those decisions as may be prescribed.”
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.
Section 61N TCPA 1990 makes provision for legal challenges to neighbourhood development plans by way of judicial review. This challenge is made pursuant to subsection (2): proceedings for questioning a decision under paragraph 12 of Schedule 4B (consideration by local planning authority of recommendations made by Examiner etc.).
(2) National policy and guidance
The National Planning Policy Framework (“the Framework”) sets out policy in respect of neighbourhood plans. By the date of the Defendant's decision to approve the recommendations in the Examiner's report, the February 2019 edition (which amended the July 2018 edition) had come into force.
The Framework provides:
“ Strategic policies
20. Strategic policies should set out an overall strategy for the pattern, scale and quality of development, and make sufficient provision for:
a) housing...
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