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District council defeats judicial review challenge over neighbourhood plan

Chichester District Council has successfully defended a judicial review challenge to a neighbourhood plan.

The claimant in Crownhall Estates Ltd, R (on the application of) v Chichester District Council & Ors [2016] EWHC 73 had been promoting the development of 25 dwellings on a site in Loxwood, West Sussex. However, its application for planning permission for the site had been refused.

A referendum on the Loxwood Neighbourhood Plan (LNP), which did not include Crownhall’s site for potential housing, was held on 24 July 2014 and 97.7% of those voting, voted in favour.

The district council (CDC) therefore became obliged under the Planning and Compulsory Purchase Act 2004 to make the LNP.

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In July 2014 Crownhall brought its first claim for judicial review. The following October the High Court made a consent order quashing CDC's decision to hold the referendum and also the subsequent referendum on the grounds that the Environmental Assessment of Plans and Programmes Regulations 2004 had not been complied with.

In particular the district council accepted that the process for making a screening decision that Strategic Environmental Assessment ("SEA") was not required for the LNP had been unlawful.

Subsequently, a lawful screening process was carried out by CDC which determined that SEA was not required for the neighbourhood plan. Crownhall did not raise any legal challenge to that decision.

Between 23 October and 4 December 2014 a fresh round of public consultation took a place on a resubmitted draft of the neighbourhood plan. Twenty representations were made, some supporting the LNP in its entirety. Crownhall made representations objecting that the LNP had not identified its site for housing.

On 25 February 2015 an examiner sent her report on the examination of the re-submitted LNP to the district council. She recommended that, subject to modifications set out in the report, the LNP satisfied the "basic conditions" and should proceed to a referendum. CDC agreed and therefore came under a duty once again to hold a local referendum.

Crownhall issued a second application for judicial review on 20 April 2015. On 5 June 2015 Mr Justice Dove granted Crownhall permission to apply for judicial review on all grounds save for a challenge to the earlier reliance upon delegated authority.

On 25 June 2015 the local referendum on the re-submitted LNP was held. On this occasion 98.5% of those voting, voted in favour of the making of the neighbourhood plan.

In the meantime on 8 June 2015 Crownhall had issued its third proceedings for judicial review challenging the decision in April 2015 to hold the referendum and seeking an order to quash that decision.

On 14 July 2015, the same day as it adopted the local plan, CDC also made the Loxwood Neighbourhood Plan under section 38(4) of the PCPA 2004.

Crownhall sought to have the legal proceedings stayed until March 2016, by which time it was expected that the Communities Secretary’s decision on the developer’s appeal against refusal of planning permission would be known.

Both Chichester and Loxwood Parish Council objected to the company’s application. A deputy master refused the application and so Mr Justice Holgate heard the case over two days in November 2015.

Crownhall, which wanted its site to be allocated as an additional housing site in the neighbourhood plan, raised the following grounds of challenge:

The examiner and Chichester District Council failed to consider whether, in accordance with the basic condition in paragraph 8(2)(a) of schedule 4B to Town & Country Planning Act 1990, it was appropriate to make the LNP, having regard to national policies and advice contained in guidance issued by SSCLG. In particular the examiner and the CDC failed to consider whether it was appropriate for the LNP to allocate land for more than 60 new dwellings in Loxwood;
  2. The examiner and CDC gave no adequate or intelligible reasons for concluding that the LNP should allocate land for only 60 new dwellings;

  3. The examiner and CDC erred in law: (a) by considering that the local Plan treats small windfalls (i.e. non-allocated sites for less than 6 dwellings) as being included within the indicative figure of 60 dwellings for Loxwood; 
(b) by failing to deal with the claimant's representation that the LNP fails to allow windfalls for 6 or more dwellings to be approved on non-allocated sites;

  4. The scoring system used to select sites for allocation in the LNP was legally flawed, because (a) it had regard to an immaterial consideration, namely whether a site fell inside or outside the proposed revision of the settlement boundary for Loxwood, and (b) the treatment of the Nursery site as "previously developed land" involved a misreading of the definition of such land contained in the NPPF.

But Mr Justice Holgate concluded that all the grounds of challenge failed and that Crownhall’s applications for judicial review must be dismissed.

On grounds 1 and 2, the judge found that:

  • Reviewing the examiner's reasoning fairly and as a whole it was self-evident why she considered it appropriate for the LNP to be made without increasing the plan's allocation of housing beyond a minimum of 60 dwellings in aggregate at the Farm Place and Nursery sites under polices 4 and 5. She had accepted the district council’s case as to why there was no need for any additional allocation to be made in Loxwood at the time of considering the LNP.
  • There was nothing unlawful in the examiner or CDC proceeding on the basis that (i) the LNP allocated sufficient land to satisfy the draft local plan provision for Loxwood, (ii) criticisms of that provision were a matter for the local plan process, (iii) in any event the OAN (objectively assessed housing requirement) figures were not disaggregated to Loxwood Parish or to any other sub-area of the district and (iv) the claimant did not put forward any need figures for the parish in the examination.
  • The examiner (and hence CDC) discharged their respective obligations to give reasons.

Mr Justice Holgate rejected Crownhall’s third ground. “Even if there were to be a tension between the LNP and the local plan as regards larger windfall sites, contrary to the conclusion I have reached, that would not cause the LNP to fail to meet the requirement for general conformity with the strategic policies of the local plan,” he added.

On the fourth ground of challenge, in relation to the scoring system, Mr Justice Holgate said he saw “some force” in the criticisms made.

“For the purposes of this challenge I will assume that the corrections should have been made so as to result in the revised scores set out……,” he said.

“Nonetheless, the real question is whether this line of argument provides a basis for vitiating the conclusions drawn in the Examiner's report and the decisions taken by CDC to put the LNP to a local referendum and to make the plan. I have reached the firm conclusion that it does not.”

The High Court judge added that ground 4 must fail, given that (a) the claimant's sole objective had been to secure the modification of the LNP by adding the Crownhall site as a third housing allocation and (b) that case was rejected by the examiner and CDC for reasons which were freestanding and could not be impugned.

“The criticisms of the URS scoring exercise did not give rise to any material legal error in the process leading to the making of the LNP,” he said.

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