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Judge upholds decision by London borough on neighbourhood plan referendum

A judge has rejected a challenge to a London borough’s decision to put a neighbourhood plan to a referendum.

Mr Justice Dove said the Royal Borough of Kensington and Chelsea had “perfectly clear and sensible reasons” underpinning its decision to earmark a site as a local green space in the St Quintin and Woodlands neighbourhood plan.

The site is owned by William Legard who was in a contractual relationship with Metropolis Properties to pursue residential development, which could not proceed were it designated as a green space in a plan later endorsed by a local referendum.

Mr Legard said the council had failed to address whether the designation satisfied the necessary criteria for a local green space, and had provided inadequate reasons for concluding that the site served the local community.

He submitted the site was in lawful use for unconstrained commercial purposes.

In Legard, R (On the Application Of) v The Royal Borough of Kensington and Chelsea [2018] EWHC 32 Dove J rejected the first ground of challenge that there had been apparent bias or unfairness in the process.

He concluded: "I do not consider that the procedure throughout the making of the Neighbourhood Plan up to the decision of the defendant to send the Neighbourhood Plan to referendum involved any unfairness to the claimant's interests.

"In particular, at the key points of the decision-making process, namely the examination of the Neighbourhood Plan and the key decision following the receipt of the Examiner's report, the claimant was afforded, and took, a full opportunity to engage in the merits of the proposal to designate the site as LGS and make their representations that this proposal was misconceived in planning terms."

On the claimant's second ground, the judge said he was satisfied that the Examiner's reasons were clear and adequate, and further that the conclusions which he reached were arrived at following a proper interpretation of paragraph 77 of the National Planning Policy Framework (conditions for designation).

The judge also dismissed the claimant's third ground, namely that the defendant had failed to provide any adequate basis for the change in view which it undertook in reaching the conclusion that the neighbourhood plan should progress to a referendum.

Mr Justice Dove said it had been true that council officers were sceptical of whether any plan examiner accepting the site as a local green space.

He said: “By the time that the key decision report came to be written, there were a number of new material considerations which needed to feature in the assessment of whether or not the plan could proceed in its modified form following the examination to a referendum.

“First and foremost, there were the conclusions of the examiner that the site met the criteria for designation.”

There was no error of law in the examiner's approach which might have infected the council's decision-making, and there were also by then observations from Historic England on the site’s historical significance.

There had also been a public petition with 2,500 signatures presented to councillors in support of the designation.

The judge said: “In my view, both of those factors, namely the emergence of the views of Historic England and the receipt of the examiner's report, were perfectly clear and sensible reasons underpinning the key decision.”

He added: “What the claimant has characterised as a volte-face is, as the defendant contended, the gradual evolution of the defendant's views on the designation, forged by the nature and extent of the submissions that they received from residents’ and the body with statutory responsibility for the historic built environment, coupled with the outcome of the…examination process.

“That evolution of the defendant's opinions is in my view understandable and lawful.”

Mark Smulian

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