Council defeats developers in High Court skirmish over neighbourhood plan

A High Court judge has today rejected a judicial review challenge brought by three national housebuilders over a council’s decision to agree to put a draft neighbourhood plan to a referendum.

The claimants – Barratt Homes and Wainhomes Developments – and the second interested party – Taylor Wimpey – had each applied for planning permission in respect of three green-field sites on the edge of the village of Tattenhall in Cheshire. The sites would have respectively seen 137, 68 and 110 homes built.

The sites were within the area covered by the draft Tattenhall Neighbourhood Development Plan (NDP). Each planning application had been recommended for approval, but each was refused by Cheshire West’s planning committee. The decisions from a combined public inquiry, held in June 2013, into the companies’ appeals is still awaited.

The NDP said that “large scale, inappropriate development along existing village boundaries will not be supported by the community”. It also suggested that future development should be limited to housing groups of no more than 30.

The developers initially sought to obtain an injunction against Cheshire West and its chief executive to prevent a referendum taking place, but allowed the poll to go ahead on the basis that the council would not ‘make’ the plan until the judicial review was finally determined.

A subsequent ballot of 1,822 eligible voters saw a 51.86% turnout (a national record), with 905 votes cast in favour of the plan and 38 against.

In BDW Trading Ltd (t/a Barratt Homes) & Anor v Cheshire West & Chester Borough Council & Ors [2014] EWHC 1470 the claimants challenged the authority’s decision on four grounds:

  1. A failure to comply with the Strategic Environmental Assessment (SEA) Directive;
  2. Breach of the duty imposed upon the council to ensure that the NDP met the basic conditions of the Neighbourhood Planning (General) Regulations 2012;
  3. Apparent bias on the part of the independent Examiner, Nigel McGurk;
  4. A policy had been introduced without meaningful evidence and had not been properly enquired into by the Examiner who failed to provide proper reasons for its retention.

However, Mr Justice Supperstone concluded that none of the grounds had succeeded.

On the question of apparent bias, the High Court judge said he did “not consider that the fair minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that Mr McGurk was biased”.

The council’s Executive will now be requested to formally ‘make’ the plan, which will stand alongside the Local Plan and guide future development decisions.

Cheshire West also said it would be writing to the Secretary of State for Communities and Local Government, who had postponed the decision on the companies’ planning appeals, to inform him of the court ruling.

In addition, the local authority is to press the examiner of the Winsford Neighbourhood Plan to reopen its hearing, which had been adjourned until the result of the Tattenhall judicial review.

Cheshire West said it would be making an application for costs in due course.

Cllr Mike Jones, Leader of Cheshire West, said: “We welcome the judge’s findings which are undoubted endorsement of the processes employed in the creation of the Tattenhall Neighbourhood Plan.

“This decision will be greeted with delight in the village of Tattenhall by a community which worked so hard and showed such unbelievable commitment in creating the plan.”