Judge orders council to reconsider core strategy in row over site inclusion

A local authority acted unlawfully when it decided that land it had acquired in the 1990s for development was not available for inclusion in its pre-submission core strategy, a High Court judge has ruled.

The case against Basingstoke and Deane Borough Council was brought by The Manydown Company, which sold the 800-hectare site to the authority in 1996 for £10m.

In The Manydown Company Ltd. v Basingstoke and Deane Borough Council [2012] EWHC 977 the company – which owns the freehold reversion of the site – challenged two decisions by the council:

• Basingstoke and Deane’s refusal on 15 December 2011 to take the course proposed in a motion calling for it to reconsider its position on the development of the Manydown site, which is farmland to the west of the town; and
• The decision of the council’s Cabinet on 23 January 2012, affirming its selection of sites for allocation in its pre-submission draft core strategy, and approving that document for consultation, having concluded that the Manydown site was not available.

Basingstoke and Deane had acquired the site under powers in the Town and Country Planning Act 1990, obtaining a 999-year lease. The purpose of the acquisition of the land was to promote development of housing.

Under the deal, the Manydown Company is entitled to receive half the proceeds of development from the council, provided that development takes place before 2050.

The claimant believed that if the land was not allocated for development in Basingstoke and Deane’s Core Strategy, then planning permission for its development for housing would not be granted in the foreseeable future.

In 2005 the council unsuccessfully proposed the site for development in its local plan process. After a change of administration the following year, it decided to suspend its involvement in the active promotion of the site for development. This remains the council’s position.

In its role as landowner, Basingstoke and Deane had decided that it would not review the position until after the Core Strategy had been formally adopted. As a local planning authority, it had also decided that the Manydown site was not available for development, and therefore that the site should not be identified for development in the Core Strategy.

The Manydown Company argued that the council had acted unlawfully. It said that Basingstoke and Deane had 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 betrayed 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 thwarted the development of the site.

The claimant also argued that, in refusing to reconsider its position, the council had prevented itself from considering circumstances as they now were, and had shut out the possibility of the land being allocated for development to fulfil the purpose for which it was acquired. This, Manydown argued, was contrary to the objectives of the relevant statutory power.

Basingstoke and Deane rejected the claimant’s arguments, insisting that it had acted lawfully throughout.

But in the High Court Mr Justice Lindblom this month found in favour of the claimant.

The judge said he could not “see any escape from the conclusion that the council’s decision [on 15 December] was not only inconsistent with the purpose for which the Manydown land was acquired and held, but plainly contrary to that purpose”.

The judge suggested it was a reasonable inference to draw from the facts that the council was seeking to ensure that the land was excluded from consideration in the Core Strategy process.

Mr Justice Lindblom said: “The process by which the council is to revisit its earlier decisions has been deliberately put on a timetable outside and beyond the process in which the Core Strategy will be evolved.

“The council has, in effect, sought to use its control of the Manydown site as a means of delaying the development of land that was acquired, with public money, for the express purpose of promoting development. That is not lawful.”

The judge also said the council’s 15 December decision was flawed by a failure to have regard for the purpose for which the Manydown land was acquired. “This remained a relevant consideration, and an important one, notwithstanding that the council was under no specific obligation to promote the site for development at any particular time, or for any particular scheme,” he said.

Had the council focused on that consideration, its decision might well have been different, Mr Justice Lindblom said.

The judge described Basingstoke and Deane’s attempted reliance on s. 1 of the Localism Act 2011, which covers the general power of competence, as “misplaced”.

“That provision is not available to rescue an authority from consequences of unlawful actions taken before it came into effect,” he said. “And in my judgment it would not be right for this new power to be relied upon to justify an authority’s use or management of land inconsistently with the statutory purpose for which that land was acquired.”

Mr Justice Lindblom said that the Cabinet decision on 23 January was also unlawful.

The judge said: “The abiding problem was this. Either the members confused the concept of the site's availability with the concept of its active promotion for development, or, if they did not, there was no rational basis for considering the land to be unavailable, or unlikely to become available if it commended itself to the Core Strategy Inspector as a strategic allocation. Whichever way one looks at it, therefore, the Cabinet's decision was flawed.”

The unlawfulness in Basingstoke and Deane’s decision-making manifested itself in several ways, the judge said. These included the fact that the 23 January decision was not taken in a vacuum but was based on earlier misconceptions. There had also been a failure to understand Government guidance, the taking into account of an immaterial consideration, and an error of fact.

The Cabinet’s decision was also irrational, Mr Justice Lindblom said. “If it had directed itself properly on the facts before it, the Cabinet could not reasonably have reached the conclusion that the Manydown site was not available.”

He added: “There was no logical or defensible basis for the decision it took.”

The judge therefore quashed both decisions. He ordered Basingstoke and Deane to:

• reconsider its position on the promotion of the Manydown land in the light of what he had said about its responsibilities as landowner; and
• reconsider the form of its pre-submission Core Strategy in the light of what he had said about its responsibilities as local planning authority.

Dorcas Bunton, Corporate Director at Basingstoke & Deane, said: “Officers need to look in detail into the implications of the judgment and what the council needs to do next to comply with the order of the judge.  

"Decisions on the options available will be taken by councillors and the judge has pointed out that the council needs to do this in a reasonable timescale. Such decisions cannot be taken in the period before an election, so officers will be reporting back to appropriate committee or council meetings after this period has elapsed.” 

Philip Hoult