District council defeats High Court challenge over decision to proceed to neighbourhood planning referendum

Rother District Council can proceed to a referendum on a draft neighbourhood development plan for Burwash after a developer lost a High Court challenge.

Park Lane Homes (South East) failed to convince Mrs Justice Lang that the council had made any errors in the process.

The developer has outline consent to build 30 homes on a site in Burwash, but has not yet gained approval for reserved matters.

It challenged the council’s decision to accept an examiner's finding that the draft plan met paragraph 8(2) of Schedule 4B to the Town and Country Planning Act 1990, that the plan met the National Planning Policy Framework and was in general conformity with the strategic policies in the area’s development plan.

Park Lane Homes (South East) also challenged it on the ground that the procedure adopted by the council was unfair because the company was not given an opportunity to make representations on the examiner's report, or the officer's report, before Rother’s chief executive made the decision under delegated authority.

In Park Lane Homes (South East) Ltd, R (On the Application Of) v Rother District Council [2022] EWHC 485 (Admin) Lang J said that Park Lane Homes (South East)’s site had an extant allocation that will continue once the neighbourhood plan is adopted because no other allocations have been made.

She said the developer could amend the proposed design to address the council's concerns, after which it could proceed.

The judge rejected the idea that the neighbourhood plan would “cast doubt” on the project  as “the draft plan maintains the same favourable treatment of housing allocations as currently provided for in Policy OVE1 and the allocation of the site under the Rother [development plan] continues”.

Park Lane Homes (South East) submitted the officer's report and the chief executive's decision were inadequate, and failed to address its concerns and representations.

Lang J said though: “However, both the officer and the chief executive agreed with the revised examiner’s report which had been published and which had already taken the claimant's objections and comments on the initial version of the examiner's report into account.”

Both were well aware of the developer’s stance and it “has not identified any new points or objections that it would have raised had it been aware of the officer's report”, the judge found.

Mark Smulian