Neighbourhood forum brings novel judicial review challenge over neighbourhood plan refusal

A High Court judge will hear a legal challenge of the London Borough of Tower Hamlet's refusal of the Spitalfields Neighbourhood Plan, in what is to be the first-ever judicial review in respect of a decision taken under s.38A(5) of the Planning and Compulsory Purchase Act 2004 to refuse to make a neighbourhood plan.

The claimant, Spitalfields Neighbourhood Forum, alleges that a council referendum on the plan received invalid votes and the decision was irrational as it was based on irrelevant material, among other grounds.

The council designated the Spitalfields Neighbourhood Area situated in London's East End in 2016 to allow the Spitalfields Neighbourhood Forum to create a neighbourhood plan.

The forum is made up of some 240 people from the local area, including local residents, representatives of local organisations and local business operators.

By August 2021, a plan for the area had been drawn up, and the Mayor of Tower Hamlets agreed with an independent examiner's recommendations that the plan should be modified and then sent to both a residential and a business referendum.

The two referenda were carried out in November 2021, but they returned different results, with businesses in their referendum voting against the plan and residents voting in favour.

As a result of the split vote and under s.38A(5) of the Planning and Compulsory Purchase Act 2004, the decision on whether or not to accept the plan fell to the council. Councillors voted to reject the plan at a full council meeting on 5 October 2022.

According to the claimant's pre-action protocol letter, this is understood to be the first example of the power under s.38A(5) of the 2004 Act being exercised.

In light of the novel nature of the decision, the council's Corporate Director of Place prepared an 18-page report for councillors.

The officer's report acknowledged the unusual scenario the council was faced with but included irrelevant information about Neighbourhood Development Orders (NDOs), according to the claimant.

The letter before claim notes that: "[It] transpired to be deeply unhelpful to include such references [to NDOs] given the number of councillors who spoke during the debate on 5 October 2022 who appeared to consider that the [the plan] would take away from the [council] and give to the claimant the exclusive ability to consider and grant/refuse development applications."

The claimant also alleges that some votes cast in the business referendum were invalid.

In a letter sent to the council in May 2022, the claimant alleged that a quarter of the votes cast in the referendum were invalid because "they were either rejected during the adjudication of personal identifiers or later found by our lawyers and since confirmed by the police to have been illegally cast by persons who had already voted the maximum number of times they were permitted".

The letter went on to accuse one business owner of voting six times, with an associate of his voting four times.

Both the referendum outcomes are currently subject to an active police investigation, the letter adds.

A total of three grounds have been advanced by the claimant. These allege that: 

1. The decision was reached in the absence of any guidance developed pursuant to the Planning Guidance (PPG) as well as the inadequate and incomplete advice from the Corporate Director of Place in her report prepared for the defendant's council meeting of 5 October 2022 and provided to each councillor prior to that meeting.
2. Relevant material information had been provided to officers by the claimant that clearly would have had a profound effect on the way in which the referenda results should have been considered by the defendant. However, officers failed to report or act upon that relevant material and, in doing so failed in the defendant's Tameside duty as well as failing to draw the relevant material to the defendant's attention. "Indeed, if anything, the officer's advice sought to discredit the claimant at 7.6 of the officer's report."
3. The failure of officers' to produce adequate and complete advice led to councillors reaching the decision by considering irrelevant and unevidenced matters – such as perceived racial bias and motivation of the claimant - "and, indeed, failing to understand the very purpose and operation of the SNP and Claimant". The decision itself was therefore irrational and based solely on irrelevant material and the inadequate material provided to defendant's councillors as part of the material they were provided to enable them to take the relevant decision.

Mr Justice Lang gave permission for the case to be heard in a notice dated 3 April.

A council spokesperson said: “We are aware of the decision and will be resisting the claim at the full hearing.”

Adam Carey