Mon, 04 Apr 2022
Planning: The claimant developer challenged the decision of a local planning authority to accept the recommendations of the Examiner into a draft neighbourhood development plan and to proceed to a neighbourhood planning referendum. Among the issues were whether national policy and guidance required a neighbourhood plan to allocate sites for housing to meet a strategic requirement in the development plan and the requirements of procedural fairness during the neighourhood plan-making process. The High Court dismissed the claim. Written by Howard Leithead, barrister at No5 Barristers’ Chambers.
R (on the application of Park Lane Homes (South East) Ltd) v Rother District Council  EWHC 485 (Admin)
What are the practical implications of this case?
First, the judgment confirms that there is no requirement in statute, national policy, or guidance issued by the Secretary of State for a neighbourhood development plan to include provision for housing or to make housing allocations. However, if it is proposed that a draft neighbourhood plan will not include such provision, care should be taken that there is no conflict with the development plan.
Secondly, the judgment clarifies that, while there may be instances where procedural fairness will require that a party be further consulted or granted additional opportunities to make representations, these will be rare where a detailed statutory scheme exists, such as with the making of neighbourhood plans. Thus, in general terms, if the statutory requirements have been met, it will be difficult to rely on an argument of procedural unfairness when seeking to challenge a neighbourhood plan decision.
Finally, the judgment illustrates the limited scope of a neighbourhood plan examination. As Mrs Justice Lang noted, the Examiner should not consider whether the plan is ‘sound’ or ‘justified’ in the sense of representing ‘the most appropriate strategy, when considered against reasonable alternatives’ and based upon ‘proportionate evidence’ (per Mr Justice Holgate in R (Crownhall Estates Limited) v Chichester District Council  EWHC 73 (Admin) at para ). Potential claimants should be cautious not to expect too much.
What was the background?
The claimant, Park Lane Homes (South East) Limited (‘Park Lane Homes’) sought judicial review of the decision of the defendant Rother District Council to accept the recommendations of the Examiner into the draft Burwash Neighbourhood Development Plan (‘the BNDP’) under paragraph 12 of Schedule 4B to the Town and Country Planning Act 1990 (TCPA 1990) and to proceed to a neighbourhood planning referendum.
Park Lane Homes was the part-owner and developer of land in Burwash referred to as the Strand Meadow site. The Council was the local planning authority for the area. In 2006, the site was allocated for housing by the Council and, in 2018, the Council granted an outline planning permission for a residential development of up to 30 dwellings, but reserved matters approval had not yet been obtained.
In the High Court, Park Lane Homes relied on two Grounds. At the heart of Park Lane Homes’ arguments under Ground 1 was its concern that the BNDP did not allocate sites for housing to meet the strategic requirement in the development plan and did not extend the development boundary accordingly. It argued that the Council erred in finding that the draft BNDP met the basic conditions of TCPA 1990, Sch 4B, para 8(2), namely, that:
- having regard to national policies (the NPPF) and advice contained in guidance issued by the Secretary of State (the Guidance), it was appropriate to make the plan (subparagraph (a) (‘basic condition (a)’)); and
- the making of the plan was in general conformity with the strategic policies contained in the development plan for the area (sub-paragraph (e) (‘basic condition (e)’))
As to Ground 2, Park Lane Homes argued that the procedure adopted by the Council was procedurally unfair as it was not given an opportunity to make representations on the Examiner’s reports or the officer’s report before the Chief Executive made the decision under delegated powers.
Park Lane Homes sought a quashing order quashing the Council’s decision and a declaration that ‘the BNDP does not comply with the basic conditions and cannot do so without amendment to (a) allocate and identify sufficient land (including the Strand Meadow site) to meet the (minimum) target of 52 dwellings and (b) to amend the settlement boundary to reflect this’.
What did the court decide?
In considering basic condition (a) under Ground 1, Lang J held that the Examiner and the Council were entitled to conclude that the draft plan met the requirements. She rejected Park Lane Homes’ argument that the NPPF and the PPG required a neighbourhood plan to allocate sites for housing to meet a strategic requirement in the development plan. She said that a neighbourhood plan body has a choice whether or not to do so. Consequently, the judge concluded that the absence of housing allocations in the BNDP was not of itself a basis upon which the Examiner and the Council ought to have concluded that the draft plan failed to meet basic condition (a).
As to basic condition (e), Lang J held that the making of the plan was in general conformity with the strategic policies in the development plan and that the basic condition was therefore met. The judge said that the Council’s strategic policies did not include any express or implied requirement that a neighbourhood plan had to be made, or that if a plan were made, it had to make provision for housing and housing allocations and to extend the development boundary accordingly. She further said that the Examiner was right to conclude that the BNDP did not contain any policy which would directly prevent the delivery of the residual amount of strategic growth.
In determining Ground 2, Lang J again rejected the submissions of Park Lane Homes. The judge noted that the developer was but one of a number of organisations and individuals who were potentially affected by the proposals. She said that while it was possible that common law requirements of fairness could require additional safeguards to be adopted in a particular case, where such a detailed statutory scheme existed it would be rare. She further said that it was generally in the interests of good administration that plan-making procedures were transparent and consistent.
The judge held that on the facts of the case that procedural fairness did not require the Council to afford to the developer any additional opportunities to be consulted and/or to make representations. She further held that Park Lane Homes had ample opportunity to make representations during the examination process, which were taken into account by the Examiner.
In consequence, Lang J dismissed the claim for judicial review.
- Court: Planning Court, Queen’s Bench Division, High Court of Justice
- Judge: Mrs Justice Lang DBE
- Date of judgment: 9 March 2022
This analysis was first published on Lexis®PSL on 31 March 2022 and can be found here (subscription required).