Developer loses court challenge over sending neighbourhood plan to referendum

A property developer has failed in a High Court challenge to a council’s decision to allow a neighbourhood development plan to proceed to a referendum.

In Larkfleet Homes Ltd, R (on the application of) v Rutland County Council & Anor [2014] EWHC 4095 the county council on 29 May 2014 allowed the Uppingham Neighbourhood Development Plan (UNP) to proceed to a neighbourhood planning referendum.

In the High Court Mr Justice Collins said: “There are a number of steps which have to be taken by planning authorities in drawing up plans setting out policies which will apply in their area. The statutory provisions are complex and as will become apparent, not always well drafted.

“They also involve relatively lengthy processes and inquiries which does nothing to reduce expense that has to be incurred. However, it is of obvious importance that all necessary procedures are followed and that powers are not misused.”

The claimant advanced three grounds in its challenge:

• The legislation on its true construction did not permit allocation of sites for particular development in NDPs (Neighbourhood Development Plans);
• There was a failure to apply the correct test in concluding that the UNP fell within Regulation 5(6)(a) of the 2004 Regulations in that it comprised a small area at local level;
• There was a failure to carry out the required environmental assessment process properly because of a failure to consider whether the proposals would cause any significant positive environmental effects.

Mr Justice Collins dismissed the claim. On the first ground, the judge said: “The regulation [5(2)(b) of the Town and Country Planning (Local Planning) (England) Regulations 2012] is badly drafted, but it would be surprising, indeed contrary to what a neighbourhood plan is supposed to achieve, if allocation of precise sites were not able to be dealt with in a neighbourhood plan.”

In relation to the second ground, Mr Justice Collins said the author of the screening report prepared in connection with the proposed UNP “did indeed consider whether the UNP determined the use of a small area at a local level”.

On the third ground, the judge said it was not surprising that possible 'significant' negative effects should have been at the forefront of the mind [of the author of the screening report], particularly as he was aware of the previous reports and their findings.

“As I have said, it is unfortunate that he has given the opportunity in the way he has expressed himself to the contention that he failed to consider whether there were any positive significant effects,” Mr Justice Collins continued.

But the judge said he was “not persuaded that on an overall reading and knowledge of the author's clear recognition of what the legislation required of him and his familiarity with the previous reports on the Core Strategy and the SAPDPD [Site Allocations and Policies Development Plan Document] he did not, however badly he expressed himself, fail to consider positive when he concluded that there were no significant effects”.