Neighbourhood forums and the exclusion of key sites

Planning 146x219In a landmark ruling the Court of Appeal has rejected a legal challenge to a council's decision to exclude key sites from a neighbourhood forum's area. Suzanne Ornsby QC, Morag Ellis QC and Isabella Tafur explain the judgment.

The Court of Appeal has handed down judgment in a judicial review brought by a neighbourhood forum in High Wycombe who challenged the district council’s decision to exclude two strategic sites from their claimed neighbourhood area.

This is a significant decision as it is the first time that the Courts have considered the meaning of the neighbourhood planning provisions inserted into the legislation by the Localism Act 2011.

In Daws Hill Neighbourhood Forum v. Wycombe DC, Secretary of State for CLG and Taylor Wimpey plc [2014] EWCA Civ 228 Sullivan LJ gave the judgment of the Court with which the Master of the Rolls and Briggs LJ agreed.

A local residents’ association applied successfully to become the Daws Hill Neighbourhood Forum but were disappointed when the council, in approving a neighbourhood area for them, excluded two major development sites - the former Daws Hill US Airforce base and a mixed use redevelopment site at Handy Cross.

The council had adopted a detailed Daws Hill Development Hill Brief and entered into a Planning Performance Agreement to progress a planning application for major residential-led redevelopment; planning permission had already been granted at Handy Cross. The residents’ association had objected to aspects of the Development Brief and the planning application, in particular, seeking to reduce the amount of development on the site.

The Forum argued in court that s.61G Town and Country Planning Act, in requiring the council to consider and designate such area as they considered ‘appropriate’, constrained it to place all the land within the claimed neighbourhood area into one or more suchareas and that it was not permitted to exclude any part of the claimed area from designation in some neighbourhood area.

This, they said, was the whole idea of neighbourhood planning and they argued that the council had undermined the statutory purpose. Consequently, they said that its statutory discretion was narrow and not, as Supperstone J had held at first instance, broad. They continued that the council, being constrained in this way, had been wrong to have regard to the wider planning context and circumstances, in particular, the strategic nature of the Daws Hill and Handy Cross sites, their mature planning status and the council’s view that preparing a neighbourhood plan would be a disproportionate use of resources given the planning context, potentially leading to frustration on the part of local residents.

A further issue to which the council had regard was the ‘mismatch’ between a neighbourhood planning exercise and the strategic nature of the sites, requiring, potentially, a referendum over a wide area of High Wycombe. The council argued that it had been entitled to have regard to the planning context and had done what s.61G required of it by designating an area in which the forum could undertake neighbourhood planning.

The Court of Appeal rejected the narrow approach to construction, and accordingly held that there was no undermining of the statutory purpose. They concluded that the council had been entitled to designate a smaller area than that claimed on the basis of the matters which they had taken into account in reaching their view as to what was an ‘appropriate’ area for designation.

Taylor Wimpey, who are the owners of the Daws Hill site, supported the council’s stance. They, and other developers, will welcome this decision as limiting the ability of local residents to utilise neighbourhood planning to restrict the development of strategic sites, contrary to the National Planning Policy Framework, which looks to neighbourhood planning to support strategic development and the Local Plan.

Suzanne Ornsby QC and Isabella Tafur of Francis Taylor Building appeared for Wycombe District Council. Morag Ellis QC, from the same chambers, was counsel for Taylor Wimpey.