A High Court judge, going on the principle that scores of other judges are unlikely to be wrong, has ruled that neighbourhood planning forums can bring planning challenges.
If the ruling had gone the other way, it would have made it much more difficult for local residents to get together and stop planning proposals they don’t like.
The case was brought by Leeds City Council. It was challenging the legal standing of Aireborough Neighbourhood Development Forum, a residents group that is challenging Leeds City Council’s development plan.
The forum has its own written constitution, bank account, steering group and identifiable membership. One of its objectives is to work with the council on its development plan. As part of its role, it is seeking to bring a legal challenge to it.
However, lawyers for the council argue that they cannot challenge Leeds’ Development Plan Document, because the forum is an unincorporated association, not a person or body, and only people or bodies can make such claims.
The council is citing the Planning and Compulsory Purchase Act of 2004 which states that “a person aggravated by a relevant document may make an application to the High Court”.
The case was heard by judge Mrs Justice Lieven. In her judgment, handed down this week, she raised the point that while unincorporated associations generally do lack the capacity to sue, many judicial review cases have been brought by such groups.
“There are a large number of cases where the legal ability of an unincorporated association to bring a judicial review has simply been assumed,” she said.
Given the checkered case law, the judge decided to settle the matter and rule that an unincorporated association does have the capacity to bring judicial review and statutory challenges.
“When different judges of the same level have reached differing conclusions on a point, then the general approach is to follow the last time,” she said in her ruling.
“I also take into account the wider policy issues which have over time led to a more flexible approach to the issue of standing,” she wrote.
“Groups of residents or interested people may choose to make representations… This is particularly the case in matters concerning planning.”
She said it “would be unfortunate” if the law prevented them from challenging decisions they had commented on in the same form in which they had made their comments.
On balance, she said the fact that so many judges in the past have allowed unincorporated bodies to bring claims “fortified” her view.
“I do not accept that so many judges would have assumed jurisdiction if they had not been entirely confident that the unincorporated association had capacity to bring the claim.
“I am not prepared to assume that multiple judges have simply ‘missed the point’ and proceeded without jurisdiction by oversight.
“I therefore reject the application that this forum does not have capacity to bring this claim.”
Aireborough Neighbourhood Development Forum – v – Leeds City Council
– and interested parties – (1) Secretary Of State For Housing, Communities And Local Government
(2) Avant Homes (England) Limited (3) Gallagher Estates Limited
QBD (Mrs Justice Lieven DBE) 14 January 2020
Jenny Wigley (instructed by Town Legal LLP ) for the Claimant.
Juan Lopez (instructed by Leeds City Council Legal Services ) for the Defendant.
Matthew Fraser (instructed by Walker Morris LLP) for the Second Interested Party
James Corbet Burcher (instructed by Shoosmiths LLP) for the Third Interested Party
