The Manydown Company Ltd v Basingstoke and Deane Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 17 April 2012 |
| Neutral Citation | [2012] EWHC 977 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1082/2012 |
| Date | 17 April 2012 |
[2012] EWHC 977 (Admin)
Mr Justice Lindblom
Case No: CO/1082/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Gregory Jones QC and Richard Honey (instructed by Dickinson Dees LLP) for the Claimant
Rhodri Price Lewis QC (instructed by the Solicitor to Basingstoke and Deane Borough Council) for the Defendant
Hearing dates: 13, 14 and 15 March 2012
Introduction
In this claim for judicial review the claimant, The Manydown Company Limited, challenges two decisions of Basingstoke and Deane Borough Council ("the Council"): first, the Council's refusal, on 15 December 2011, to take the course proposed in a motion – motion 12(4) – calling for it to reconsider its position on the development of a site that it owns, which comprises about 800 hectares of farmland at Manydown to the west of Basingstoke; and second, the decision of the Council's Cabinet on 23 January 2012, affirming its selection of sites to propose for allocation in its pre-submission draft Core Strategy, and approving that document for consultation, having concluded that the Manydown site was not available.
The matter came before me at a "rolled-up" hearing of both the application for permission and, if permission were granted, the claim itself. The hearing began on 13 March 2012. On 9 February 2012 Ouseley J had refused a stay of the Council's consultation process, which was due to begin the following day. The consultation process was to run until 23 March 2012. Shortly after that the "purdah" period preceding the local government elections on 3 May 2012 would begin. It was envisaged that after the elections the Council would receive a report on the consultation, that the decisions made in the light of that report would be embodied in the submission version of the Core Strategy, which was expected to emerge in July 2012, and that the examination of the Core Strategy by an Inspector would be held in the autumn of 2012. In paragraph 7 of his judgment refusing a stay, [2012] EWHC 593 (Admin), Ouseley J said this:
"There is some scope for disadvantage to the claimant if a stay is not granted, but I do not regard the difficulty of arguing for the inclusion of this site [in] the consultation process, or, at a later stage, if the current decision about it is unlawful, as being significantly greater than it would be if a stay is granted and the claimant has to put forward its argument at a later stage. Clearly the consultation document has reached a very advanced stage and is ready probably for distribution. In so far as one is contemplating an institutional reluctance to reconsider, that is present whatever happens and what is required is a decision on the lawfulness or unlawfulness of the decision and how that should be remedied."
Background
The claimant is the owner of the freehold reversion of the Manydown site. The land is held by the Council on a 999 year lease, running from February 1996. Effectively, therefore, the Council is the landowner.
The Council acquired the Manydown site under powers in the Town and Country Planning Act 1990 ("the 1990 Act"). The purpose of its acquisition of the land was to promote on it a high quality, comprehensive development of housing. The claimant is entitled to receive from the Council half the proceeds of development, provided that development takes place before 2050, but not if it takes place after that.
The Council's Core Strategy, once adopted, will be the principal component of the local development framework ("the LDF") for the Council's area. The claimant says that unless the Manydown site is allocated for development in the Core Strategy planning permission for its development for housing will not be granted in the foreseeable future.
In 2005 the Council unsuccessfully proposed the Manydown site for development in its local plan process. But after a change of administration in 2006 the Council decided to suspend its involvement in the active promotion the site for development. This remains the Council's position. As landowner it has decided that it will not review this position until after the Core Strategy has been formally adopted. And as local planning authority it has also decided that the Manydown site is not available for development, and therefore that the site should not be identified for development in the Core Strategy. The claimant says that the Council has relied on its decisions in 2006 and 2009 as a basis for preventing the inclusion of the site in the Core Strategy, that its refusal to reconsider those decisions betrays a determination not merely to hold off promoting the development of the land but actively to prevent itself from including the land in the Core Strategy, binding itself instead to a position that thwarts the development of the site. This, says the claimant, is plainly unlawful. By refusing even to reconsider its position the Council has prevented itself from considering circumstances as they now are, and has shut out the possibility of the Manydown land being allocated for development to fulfil the purpose for which it was acquired. This, says the claimant, is directly contrary to the objectives of the relevant statutory power. None of that, however, is conceded by the Council. It says it has acted lawfully throughout, in accordance with its statutory duties and without exceeding its statutory powers.
The issues
The main issues for the court to decide are these:
(1) Is the claim, in whole or in part, excluded from the court's jurisdiction in a claim for judicial review by section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act")? ("Issue (1) – Jurisdiction");
(2) Were the decisions taken by the Council on 15 December 2011 to reject the course of action proposed in motion 12(4) and the decision of the Council's Cabinet on 23 January 2012 to exclude the Manydown site from the consultation on the pre-submission Core Strategy lawful? ("Issue (2) – Lawfulness"); and
(3) If either or both of the decisions impugned is unlawful, what relief, if any, should the court grant? ("Issue (3) – Remedy").
The facts
The Council's acquisition of the land
The Council acquired its leasehold interest in the Manydown site from the claimant, with an option to acquire the freehold, under a lease dated 20 February 1996. It is under this lease that the Manydown site remains in the Council's ownership and control.
The acquisition of the land was considered by the Council's Policy Committee at three meetings in 1995: on 18 July, 17 October and 2 November.
When the Policy Committee met on 18 July 1995 it received the confidential report of the Council's Strategic Management Group. The purpose of the report was described (in para. 1.1) as being "to inform Members of an opportunity which has arisen to acquire an area of land to the west of Basingstoke", and also to seek authority to enter into negotiations, jointly with Hampshire County Council, for the purchase of the freehold interest in the land. In section 2 of the report, which set out background information, the committee was told this:
"2.1 As Members will be aware the recent Hampshire County Structure Plan Review Consultation Document "Hampshire 2011" identifies (inter alia) a Major Development Area at Manydown to the west of Basingstoke. The area is identified as being capable of accommodating between 3,500 and 8,500 dwellings and associated development.
2.2 It has been recognised that as ownership of land provides additional control over the nature of development, it is the preferred solution for large-scale development (as for example at Chineham). As the proposed Major Development Area in question falls within a single ownership (The Manydown Estate) discussions have been sought with the owners and the County Council to establish whether opportunities exist for jointly influencing and bringing about the satisfactory development of the area.
…
2.7 The two Councils are therefore presented with a significant opportunity to work together to secure the successful development of the Major Development Area similar in scale to the County Council's successful scheme at Chineham. It is considered that this opportunity should not be missed."
In section 3 of the report, under the heading "Planning Implications" the advice was this:
"3.1 Members should be aware at this juncture that in planning terms the land in question has not progressed beyond its identification as a possible future development site.
…
3.5 Ownership enables tight control over the phasing of development which otherwise is in the control of the developer. In the event of this land being approved in development plans for residential or other use, ownership will enable a high degree of control over any adverse impacts on the residents of Oakley, Worting and Kempshott."
The report went on, in section 4, to deal with financial considerations. It stated:
"4.1 There is no doubt that if the area is developed both authorities would make substantial financial gains. There is, however, a risk that the area will not be developed in the next Structure Plan period. Even so there must still be a long term development prospect for this site. …
The Council's objectives in purchasing the site, in partnership with the County Council, would be:
(i) To achieve a properly planned, comprehensive development of the area.
(ii) To secure land for low cost housing in accordance with existing Council policy.
(iii) To achieve a financial...
To continue reading
Request your trial
-
London Borough of Hillingdon and Others v The Secretary of State for Transport (Defendant/Applicant) The Department for Environment, Food and Rural Affairs and Others (Interested Parties)
...Ltd [2006] EWCA Civ 1103; [2007] 1 WLR 482; [2006] 4 All ER 982, CAManydown Co Ltd v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin); [2012] JPL 1188R v Bentham [2005] UKHL 18; [2005] 1 WLR 1057; [2005] 2 All ER 65; [2005] 2 Cr App R 175, HL(E)R v Brown (Richard) [2013] UKSC 4......
-
R CK Properties (Theydon Bois) Ltd v Epping Forest District Council
...a document. 34 He contends that the decisions of the High Court in The Manydown Company Ltd v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin) and I.M. Properties Development Ltd v Lichfield District Council [2014] EWHC 2440 (Admin) support this construction of s.113(2). 35 In ......
-
McGarrell Reilly Homes Ltd v Meath County Council
...relying on Begum v. Tower Hamlets LBC [2003] UKHL 5, [2003] 2 WLR 388, R (Manydown Ltd.) v. Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin), R (Campaign Against Arms Trade) v. Secretary of State for International Trade [2019] EWCA Civ 1010, R v. Camden LBC ex parte H [1996......
-
Linda Kendall v Rochford District Council (First Defendant) Secretary of State for Communities and Local Government (Second Defendant)
...certainty as to the legal validity of the plan in question. In The Manydown Company Ltd. v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin) (at paragraph 84) I considered the circumstances in which the preclusion in section 113(2) would not bite, and, in particular, the possib......