Suzanne Ornsby QC and Isabella Tafur explain the background to an important High Court ruling on the impact of the Localism Act on the planning system.
Two High Court judgments handed down in February 2013 have considered the effect of the Localism Act 2011 on our planning system.
One of the cases, Tewkesbury Borough Council v Secretary of State for Communities and Local Government and others  EWHC 286 (Admin) has been examined in a recent article by Martin Goodall in Local Government Lawyer. The other is R (Daws Hill Neighbourhood Forum) v Wycombe District Council and others  EWHC 513 (Admin)
In the Daws Hill case a neighbourhood forum, designated by Wycombe District Council under section 61F of the Town and Country Planning Act 1990, challenged the Council’s decision to designate a neighbourhood area which was smaller than that which the forum had applied for. The Council had excluded two strategic sites from the neighbourhood area it designated under section 61G of the 1990 Act.
In both cases a conspicuous lack of published guidance on the Localism Act provisions led to the Claimants relying on broad governmental statements as to the effect of the Act, contained in the DCLG publications A Plain English Guide to the Localism Act, Neighbourhood planning – frequently asked questions and An Introduction to Neighbourhood Planning.
In Tewkesbury it was argued that the Localism Act and the policy which it embodied heralded a ‘sea change’ in the proper approach to planning decisions, which now required a much greater priority than hitherto to be accorded to the views of local planning authorities. This was an example of the local planning authority seeking to use the Localism Act provisions to wrestle power from the Secretary of State.
In Daws Hill it was argued that the DCLG documents made it clear that the government’s intention in enacting the 2011 Act was to give local people real power to shape their local communities and to exercise influence over the decisions that would ‘make a big difference to the lives of those who live there’. This was an example of local people attempting to use the Localism Act to wrestle power from the local planning authority.
The Claimants did not succeed in either case.
In Daws Hill the argument focused on the exercise of the Council’s acknowledged discretion in designating neighbourhood areas. All parties agreed that where Parliament confers a discretion on a decision maker, that discretion must be used to promote the policy and objectives of the Act (as in Padfield v Minister of Agriculture, Fisheries and Food  AC 997). However in identifying the policy and objectives of the Act, the correct approach was to consider the actual statutory provisions, and not any ‘political spin’ which had accompanied it. Both the Tewkesbury and Daws Hill decisions emphasised that point.
In the former case the Claimant referred to the ‘fundamental change’ brought about by the Localism Act, which, it claimed, required much greater weight to be given to the views of the local planning authority: Males J explained that “He [the Claimant’s advocate] identifies the change, not so much in the words of the Act (I invited him to draw to my attention the statutory provisions which had the effect contended for, but he made clear that this was not how he put his case) but in broad statements made by government ministers and others as to what the Act was intended to do, eliminating ‘top down’ planning and transferring power to local communities. […] It is not sufficient to refer in general terms to essentially political statements as to the radical nature of any proposed change in law or policy."
In Daws Hill the Claimant eventually acknowledged that the DCLG publications could not be used as an aid to interpreting the statutory provisions, and the judge accepted that the Council was not required to have regard to them as material considerations, in reaching its decision. The legislative purpose in introducing the neighbourhood planning provisions into the 1990 Act was to enable neighbourhood forums (and parish councils) which reflected the community in question, to make neighbourhood plans guiding development in their area, within a strategic planning context. The Council had not frustrated this policy in exercising its discretion to exclude two sites from the neighbourhood area.
Supperstone J explained that section 61G of the 1990 Act requires local planning authorities determining an application for a neighbourhood area to consider whether the area proposed is appropriate. He found that the discretion granted to local authorities was a broad one, and that the exercise of that discretion turned on the specific factual and policy matrix existing at the time the decision is made.
The Council had been right to take into account the following specific circumstances existing at the time of its decision: (i) the fact that a very detailed, fairly prescriptive policy framework was in the process of being completed, which was addressing the type, design and mix for one of the sites, and which had been the subject of substantial consultation; (ii) the fact that outline planning permission had been granted for one of the sites, and an application for outline permission for the other site was expected imminently; and (iii) the fact that by the time a neighbourhood plan was in place (a process likely to take up to 21 months), the development of both sites was likely to be well underway; and (iv) the fact that substantial consultation had already taken place in respect of both sites.
In light of the circumstances, there was no flaw in the reasons given by the Council for its decision. While it was not the case that strategic sites could never be the subject of a neighbourhood area, it was not appropriate for them to be so in this particular case. The Council was entitled to take into account the strategic nature of the sites and to find that there was a substantial mis-match between the neighbourhood forum and the area which it sought to control. Furthermore, if at the outset of the process it appeared that there would have to be a referendum over a wider area than the proposed neighbourhood area, that would reinforce the Council’s concern over a mis-match.
The judge acknowledged that local authority resources were limited, and that having regard to the stage that had been reached in relation to planning matters on the two sites, and the time it would take for a neighbourhood plan to complete the various statutory processes, the Council was entitled to consider whether any useful purpose would be served by including those sites in the neighbourhood area. If, as in this case, the likelihood was that any neighbourhood plan would be overtaken by events, the proposed neighbourhood designation would not influence the planning applications or development of the two sites, and the Council was entitled to have regard to the fact that this could lead to frustration at local level.
This judgment is likely to be welcomed by local planning authorities, which have been charged with implementing and assisting the neighbourhood planning process, but have been given very little in the way of guidance as to how these new powers should be exercised. It is now clear that local planning authorities should consider whether the area proposed is appropriate for neighbourhood planning; that they have a broad discretion in determining such applications; and that they should have regard to the specific factual and policy matrix pertaining at the time of its decision.
Certain questions do, however, remain and it is likely that further guidance from the courts will be required. How, for example, should local planning authorities determine applications for neighbourhood areas where two or more rival neighbourhood forums seek to control the same area, or where proposed neighbourhood areas overlap?
Both Tewkesbury and Daws Hill suggest that undue reliance should not be placed on political posturing or ministerial statements, in interpreting the new town and country planning provisions introduced by the Localism Act. However, unless clear guidance is published in relation to the exercise of these new powers, it is unlikely that this will be the last time the courts are asked to consider the policy objectives or effects of the Localism Act in the context of town and country planning.