Second respondent county council adopting structure plan – Claimant challenging adoption of structure plan – Whether council failing to give adequate reasons for decision to reduce figure for housing provision – Whether statements in explanatory memorandum to structure plan constituting policy – Section 32 of Town and Country Planning Act 1990 – Claim allowed in part
The Kingsley Estate owned green belt land to the south-west of Poynton. In 1996 the second respondents, Cheshire County Council (the council) placed the draft Cheshire 2011 replacement structure plan on deposit. The plan contained a policy providing for the construction of around 5,000 new dwellings in Macclesfield borough between 1996 and 2011. The claimant, acting on behalf of the estate, objected to various policies in the plan and proposed modifications to it. These included an increased figure of 5,700 or 6,000 for housing provision and the relaxation of green belt restrictions around Poynton, the latter upon the basis that there was insufficient urban land for 5,000 new houses.
An examination-in-public panel subsequently produced a report recommending, inter alia, that housing provision remain at 5,000. Having considered the panel’s recommendations, the council published a report detailing the proposed modifications to be made to the structure plan. These included a reduction in the housing provision to 4,500. In 1999 the council adopted the Cheshire 2011 replacement structure plan.
The claimant, on behalf of the estate, challenged the adoption of the plan, under 287 of the Town and Country Planning Act 1990, on the ground that the council had failed to comply with regulation 16 of the Town and Country Planning (Development Plan) Regulations 1991 by not giving adequate reasons for the conclusion they reached in the light of the panel’s recommendations. It was submitted that the council had failed to comprehend the panel’s report or to grapple with its essential points, namely the conclusions on green belt and urban capacity.
The claimant further sought to quash the explanatory memorandum to the structure plan, both pursuant to section 287 of the 1990 Act and by an application for judicial review. It was submitted that certain statements in the memorandum were statements of policy, rather than the council’s explanations or reasons for such proposals, and that, as such, they were not authorised by section 32 of the 1990 Act to be part of an explanatory memorandum. The claimant submitted that, being “policies”, the statements should have gone through the statutory procedures and should have been included in the structure plan.
Held: The application was allowed in part.
1. The council did grapple with the fundamental features of the panel’s report. It could not be said that the council failed to understand the panel’s approach or failed to provide adequate reasons for their decision, pursuant to regulation 16.
2. An explanatory memorandum was fulfilling its statutory purpose where it contained reasons for, or explained, policy. However, where statements were made as to where or how development was to take place, that constituted policy. The more specific a statement was as to the location of a development, the more likely it was to be policy. Further, a description of a policy that once existed could take on the character of that policy, particularly if it referred to where or how development should take place. The court should be aware of the need to avoid becoming the draftsman of the explanatory memorandum, and should only be willing to find that it contained policy in very clear cases. In the instant case, however, certain statements in the memorandum were clear and implicit statements of where development should take place and, therefore, did constitute policy.
3. The claimant’s application for judicial review was permitted. The offending parts of the memorandum were struck out, leaving the structure plan intact.
Timothy Straker QC and Richard Harwood (instructed by Dechert) appeared for the claimant; David Manley (instructed by Sharpe Pritchard) appeared for the second respondents; the first respondent did not appear and was not represented.
Sarah Addenbrooke, barrister
