Judge allows urgent application by council for judicial review after it published incorrect versions of neighbourhood plans ahead of referendum

A borough council was forced to apply to the High Court for judicial review after discovering that the versions of two proposed neighbourhood plans it published ahead of referendums were materially incorrect, it has emerged.

In Waverley Borough Council, R (On the Application Of) v Waverley Borough Council Counting Officer [2024] EWHC 833 (Admin) Mrs Justice Lang granted Waverley permission to apply for judicial review of the referendum processes and allowed the substantive claim. [The hearing was on 13 March with the written judgment appearing on Bailii last week]

Waverley made an urgent application to the High Court after realising the public was set to vote on documents that did not reflect agreed-upon recommendations from the plans' independent examiner.

The judicial review centred on the referendum processes for the proposed Elstead and Weyburn Neighbourhood Plan and the Cranleigh Neighbourhood Plan.

The defendant was Waverley's Counting Officer, who is responsible for conducting the referendums in accordance with Regulation 9 of the Neighbourhood Plan (Referendums) Regulations 2012 (the Regulations).

In January this year, the council voted to accept the independent examiner's recommendations on the two neighbourhood plans, which triggered a referendum on their adoption.

Ahead of the referendums, the council provided the Proper Officer with an information statement and specified documents, including the proposed neighbourhood plans.

The Proper Officer duly published these on the council's website and made them available at the council's offices.

The council then gave public notice on 25 January 2024 that both referendums would be held on 29 February.

However, over the course of the next ten days, the council realised that both drafts of the neighbourhood plans were materially incorrect.

In the draft Elstead and Weyburn plan, the key diagram did not accord with the version approved by the examiner and included erroneous changes to site allocations and the settlement boundary.

While in the draft Cranleigh plan, the Local Green Spaces map did not accord with the version approved by the examiner, and included an erroneous settlement boundary.

Under the Regulations, a council must continue the referendum processes at this stage unless restrained by the High Court.

Following exchanges with the Counting Officer, Waverley applied for judicial review, urgent consideration and relief.

On the same day (16 February), Mrs Justice Lang issued an order restraining the defendant, the Counting Officer, from proceeding with the referendum processes until the determination of the claim or further order. She also ordered an expedited rolled-up hearing.

At the hearing on 13 March, counsel for Waverley submitted that the legislative framework for the conduct of neighbourhood plan referendums provided no mechanism by which the claimant or defendant could either correct the significant mistake that had been made, or stop the process altogether.

The barrister for Waverley's Counting Officer suggested alternate processes, but the judge said she did not consider that these would have been "either appropriate or effective".

Mrs Justice Lang went on to consider how, in relation to electoral matters, the court must be slow to exercise its discretionary power to grant an injunction in advance of an election unless exceptional circumstances can be demonstrated, as set out in R (Begum) v Tower Hamlets LBC [2006] EWCA Civ 733 per Sir Anthony Clarke MR at [21].

She said: "In my judgment, there are exceptional circumstances in this case. If the referendums had proceeded, the outcome would have been an unlawful result.

"The proposed NPs would not have been provided to voters prior to the referendums, as required by Regulation 4 of the Regulations."

She added: "Furthermore, the electorate would have voted on draft plans which were not the proposed NPs which had been approved by the independent examiner, and upon which the council had decided to hold the referendums.

"For these reasons I grant the council permission to apply for judicial review and I allow the substantive claim for judicial review."

Adam Carey