Spitalfields Neighbourhood Planning Forum v Tower Hamlets Council
| Jurisdiction | England & Wales |
| Judge | Sir Duncan Ouseley |
| Judgment Date | 04 July 2023 |
| Neutral Citation | [2023] EWHC 1657 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2/2023 |
and
[2023] EWHC 1657 (Admin)
Sir Duncan Ouseley
Sitting as a High Court Judge
Case No: CO/2/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Bell (instructed through Direct Access) for the Claimant
Gwion Lewis KC (instructed by the Solicitor to the LBC of Tower Hamlets) for the Defendant The Interested Party did not appear
Hearing dates: 20–21 June 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 4 th July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Duncan Ouseley sitting as a High Court Judge:
This is a challenge by way of judicial review to the decision of Tower Hamlets Council, the Council, on 5 October 2022, not to make the Spitalfields Neighbourhood Plan. This decision was taken under s38A(5) Planning and Compulsory Purchase Act 2004, PCPA 2004. The separate residential and business referendums, which are part of the statutory procedures for making Neighbourhood Plans, had produced different results. One, the residential referendum, supported the making of the Plan, but the business referendum came to the opposite conclusion. The Council therefore had to decide whether or not to make the Plan. It decided to refuse to make the Neighbourhood Plan. This Neighbourhood Plan thus fell at the last hurdle on the route to becoming part of the Development Plan for the Council under the Town and Country Planning Act 1990, TCPA 1990.
The Claimant is the Spitalfields Neighbourhood Planning Forum, an unincorporated association which was designated as Neighbourhood Planning Forum under s61F TCPA 1990, and which was a “qualifying body” under s38A(1) and (12) PCPA 2004. This authorised it to act for the purposes of initiating a Spitalfields Neighbourhood Plan, promoting it and taking it through the statutory procedures, with a view to it becoming part of the development plan. Its challenge, in form at least, focuses on the legal adequacy of the Officer's Report to the Council meeting of 5 October 2022. Truman Estates Ltd, the Interested Party, also known as the Old Truman Brewery and perhaps not directly affected, but the subject of adverse comment in the claim, owns the Truman Estate, a substantial commercial property including 91 Brick Lane, in the area of the Plan, which, with its tenants, was a significant contributor to the vote in the business referendum.
The background facts and statutory provisions
The Planning and Compulsory Purchase Act 2004 was amended by the Localism Act 2011, so as to create a new plan-making process at a level below the local planning authority; this was the Neighbourhood Development Plan, NDP. It is not prepared by the local planning authority. Under s61F TCPA 1990, the local planning authority could designate an organisation as a “Neighbourhood Forum” if it were established for the express purpose of promoting or improving the social, economic and environmental wellbeing of the neighbourhood area. The Claimant was so designated in respect of the area of Spitalfields, a “neighbourhood planning area” also designated by the Council in Cabinet, in 2016. The area was also designated as a “business area” under s61H TCPA 1990, because the Council considered the area of the Plan to be “wholly or predominantly business in nature.” The Forum, as I shall now call the Claimant, thereby became a “qualifying body”, entitled under s38A PCPA 2004, “to initiate a process for the purpose of requiring” the Council “to make a neighbourhood development plan”; s38A(1). A neighbourhood development plan is one “which sets out policies (however expressed) in relation to the development and use of land” in the neighbourhood area or part of it. If, at the end of the statutory procedures, the NDP is made by the local planning authority, it becomes part of the statutory development plan; s38A(6) PCPA 2004 provides, in familiar language, that if regard is to be had to the development plan for the purpose of a determination under the “planning Acts”, which term is defined so as to include Acts under which most planning decisions on development and use are made, notably the TCPA 1990, “the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
The procedures to be followed for the making of a NDP were summarised by the Supreme Court in R (Fylde Coast Farms Ltd) v Fylde Borough Council [2021] UKSC 18, [2021] WLR 2794 at [2]:
8. “Speaking generally, the making of neighbourhood development… plans requires the taking of what may loosely be described as seven consecutive steps, mainly by the relevant local planning authority. They are, in summary: (1) designating a neighbourhood area; (2) pre-submission preparation and consultation; (3) submission of a proposal; (4) consideration by an independent examiner; (5) consideration of the examiner's report; (6) holding a local referendum; (7) making the …plan.”
This application concerns steps 6 and 7. The previous steps were taken without significant hitch. The Council, in Cabinet, agreed that the draft Plan could proceed to further public consultation and independent examination in December 2020. The examination took place in February 2021, with a report in July 2021 recommending that, with modifications, it should proceed to step 6. The Council, through the Mayor, accepted the recommendation in August 2021.
Because the Council had designated the area of the Plan to be a business area, the PCPA 2004 required that two referendums be held, one for residential voters and one for business voters. Both had to be held on the same day, and were held on 11 November 2021. The referendums asked the same question. The question asked was: “Do you want the London Borough of Tower Hamlets to use the neighbourhood plan for the Spitalfields Neighbourhood Planning Area to help it decide planning applications in the neighbourhood area?” The voters in the residential referendum were those already on the electoral roll for the Plan area for local elections. There were 4102 eligible voters in the residential referendum. The business voters of the area had to register to vote specifically in this referendum. 812 businesses in the area were invited to register as voters, but only 132 accepted the invitation and registered. A person qualified and registered to vote in each referendum could vote once in each, but not twice in either, notably relevant to the business referendum where one person might be qualified to register in respect of more than one business premises in the area.
The results were declared on the same day as the referendum. The Declarations by the Counting Officer set out the total votes, the numbers of rejected ballot papers and set out the outcomes. In the residential referendum, 258 voted in favour of the Spitalfields Neighbourhood Plan, SNP, being used to determine planning applications, and 252 voted against that proposition. The turnout was 13.46% of the eligible electorate. 2 votes were rejected because the voters could not be identified. In the business referendum, 18 voted in favour of the SNP being used to determine planning applications, and 70 voted against. No ballot papers were rejected. The turnout was 66.67% of the registered voters. (9 postal votes had already been rejected for want of adequate identifiers, although that is not part of the Declaration.)
S61N TCPA 1990 provides for challenges to the referendum to be made within 6 weeks starting on the day after the result of the referendum was declared, i.e. 23 December 2021. No proceedings were launched by the Claimant in respect of the business referendum, whether by reference to the voters who were treated as eligible to vote, or by reference to those who voted or the way in which the “No” campaign was conducted, money was expended in that cause, or in respect of conduct alleged by the Claimant against the owner of the Truman Estate in respect of postal votes by his tenants. Complaints aplenty were made to the Council in a written statement of, I am told, 16 December 2021, referred to as the December 2021 Paper; but no proceedings were taken. There has been no debate over the voting in the residential referendum.
This is the first time, so far as the parties are aware, when there has been a split outcome, with the business referendum rejecting the NDP. Where, as here, there are two referendums, it is only if both favour making the NDP that s38A(4) PCPA 2004 requires the Council to “make” the NDP, and it becomes a full part of the statutory development plan. Where the vote in each is negative, the PCPA 2004 imposes no obligation on the Council to refuse to make the Plan; there is no express statutory provision covering that situation. However, where the results of the two referendums differ, as here, s38A(5) provides that “the authority may (but need not) make a neighbourhood development plan to which the proposal relates.” That was the decision for the Council which it, in full Council took on 5 October, resolving against making the Plan by 41 votes to 2.
This challenge to that decision was then lodged on 23 December 2022, and issued on 3 January 2023. Lang J, in granting permission, referred to an arguable point raised by the Claimant as to the time limits applicable to the bringing of this judicial review claim. The parties agreed that the time limits were the commonplace avoidance of undue and prejudicial delay in s31(6) Senior Courts Act 1981, and the 3 month time limit in Part 54 CPR. There was no provision in the PCPA 2004 which curtailed that time limit. The 6 week time limit in Part 54.5-(AI)(5) CPR did not apply because the PCPA...
To continue reading
Request your trial