Town and country planning – Neighbourhood plan – Referendum – Claimant applying for judicial review of decision of defendant city council to allow neighbourhood plan to proceed to local referendum – Whether defendants entitled to be satisfied that appropriate to adopt plan having regard to local and national planning policies – Whether making of neighbourhood plan in general conformity with strategic local plan policies – Application dismissed
The claimant developer wished to develop a site at the Ridge, Linton near Wetherby. The defendant city council earmarked the site in 2006 for possible housing development in the longer term. The interested party, the parish council for the area including the Ridge, was opposed to its development and hoped it might be returned to the green belt.
The claimant challenged the defendants’ decision to allow the Linton Neighbourhood Plan (LNP) to proceed to a local referendum, applying provisions added to the Town and Country Planning Act 1990, as amended, by the Localism Act 2011. The LNP was prepared by the interested party and, with modifications, accepted by the defendants. The claimant argued that the LNP was unlawful because it included text that ought not to be there, in which the interested party had effectively stated that the Ridge should not be developed. However, the interested party could not lawfully say that in the LNP, because the defendants were the body that had to decide that issue and had already designated the land as suitable for housing development in the future. Accordingly, the result of a local referendum approving the LNP could not stand and had to be quashed. The defendants opposed the claim but accepted that, if it was well founded, the decision challenged and the subsequent referendum result should be quashed. The interested party took no part in the proceedings.
The overarching question was whether the defendants were bound to submit the LNP to a referendum, which turned on whether they were entitled to be “satisfied” that it was “appropriate” to adopt the LNP, having regard to the policies stated in the national planning policy framework (NPPF) and the planning policy guidance (PPG), and that the making of the LNP was in general conformity with the strategic policies in the Leeds Local Plan.
Held: The application was dismissed.
(1) If the defendants were satisfied that the draft plan, with or without modifications recommended or not recommended by the examiner, met the basic conditions, they were bound to submit the plan to a referendum: see paragraph 12(4) of Schedule 4B to the 1990 Act. The meaning of “general conformity” was a question of construction for the court. The requirement of general conformity between the two plans might allow room for manoeuvre within the local plan in the measures taken to reflect structure plan policy, so as to meet the various and changing contingencies that could arise. Measures might properly be introduced into a local plan to reflect the fact, where it arose, that some aspect of the structure plan was itself to be subject to review. That flexibility was not unlimited and measures of that kind might not pre-judge the outcome of such a review. They had to respect the structure plan policies as they were, while allowing the possibility that they might be changed. Applying that construction, which was a matter for the court, the question whether one plan was in general conformity with another was a matter of planning judgment for the decision maker and, depending on the circumstances, might admit of more than one reasonable answer; the court’s role was supervisory, applying the usual public law standard and not any enhanced standard: Persimmon Homes (Thames Valley) Ltd v Stevenage Borough Council [2005] EWCA Civ 1365; [2005] PLSCS 210 applied.
(2) When considering the policies in a local plan, the focus had to be on the policies themselves. The supporting text consisted of descriptive and explanatory matter and/or a reasoned justification of the policies, which was relevant to their interpretation but did not have the force of the policies themselves. Development plan policies were not akin to provisions in a statute or contract, and were not to be interpreted as such. They had to be sensibly construed, reading the plan as a whole, with a focus on its relevant objectives and the policies that gave effect to those objectives: R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567; [2014] EGILR 35 and Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin); [2015] PLSCS 61 considered.
(3) The basic condition in paragraph 8(2)(e) of Schedule 4B to the 1990 Act only required that the draft neighbourhood plan as a whole be in general conformity with the strategic policies of the adopted development plan (in so far as it existed) as a whole. There was no need to consider whether there was a conflict or tension between one policy of a neighbourhood plan and one element of the local plan. A neighbourhood plan was not required to include policies on the use of land for housing, though it might do so. The qualifying body was not responsible for preparing strategic policies in its neighbourhood plan to meet objectively assessed development needs across a local plan area. The requirement in paragraph 8(2)(a), that it had to be appropriate to make the order, was a matter of planning judgment rather than pure discretion, in view of the obligation to submit the plan to a referendum if satisfied that the basic conditions were met: R (on the application of BDW Trading Ltd) v Cheshire West & Chester Borough Council [2014] EWHC 1470 (Admin); [2014] PLSCS 151 and R (on the application of Crownhall Estates Ltd) v Chichester District Council [2016] EWHC 73 (Admin) considered.
(4) In the present case, the challenge was to the defendants’ decision to adopt the LNP subject to modifications, not all of which were among those recommended by the examiner. The defendants were not obliged, when deciding upon modifications, to limit themselves to those proposed by the examiner. What mattered was whether the modifications made by the defendants resulted in an unlawful decision to approve the LNP. It had been open to the defendants to make the modifications which they made, and to profess themselves satisfied that the basic conditions were met. Having reached that conclusion, they were bound to accept the LNP and submit it to a referendum. Accordingly, the LNP and the referendum result had to stand.
Christopher Young and James Corbet Burcher (instructed by Walker Morris LLP, of Leeds) appeared for the claimant; Alan Evans (instructed by Leeds City Council) appeared for the defendants.
Eileen O’Grady, barrister
