Council defeats High Court challenge over decision not to make neighbourhood plan

The London Borough of Tower Hamlets acted properly when it refused to make a neighbourhood plan after becoming the first council to face split referendum results over this, the High Court has concluded.

A plan had been prepared for the Spitalfields area by the Spitalfields Neighbourhood Planning Forum, which if passed would have had the same status as a local plan.

But while local residents supported the plan by 298 votes to 232 on a 13.46% turnout, business voters rejected it by 70 votes to 18 on a 66% turnout.

This left Tower Hamlets to choose whether to make the plan or not faced with a split referendum result that planners told councillors had never happened before.

The council refused to make it given the low turnout and closeness of the residential vote but the forum argued that the plan should have proceeded and that some business votes were cast improperly.

In Spitalfields Neighbourhood Planning Forum v Tower Hamlets Council [2023] EWHC 1657 Sir Duncan Ouseley, sitting as a High Court judge, was told two main groups had opposed the plan, the owner of the Truman Estate and the Brick Lane Restaurant Association.

The forum said the latter’s concerns were reasonable and could be overcome, but those raised by Jason Zeloof, owner of the Truman Estate were could not be met.

The forum claimed that its evidence cast doubt on the legitimacy of the business vote.

Sir Duncan said in his judgment that the forum’s challenge “raises issues about the way in which the issues were presented to the council in the officer's report.

“But the council contends that the issues raised, in large measure, relate to the voting in the business referendum: multiple voting, unlawful expenditure, undue influence in postal voting, which the [forum] says should have featured in the officer's report so as to reduce the weight which the report or the council attached to the negative vote in the business referendum.”

Sir Duncan said the marked register appeared to reveal the multiple voters and “the possible criminal penalties, whether or not accompanied by any provision that that should affect the validity of the result, can be enforced regardless of the time limit for the challenge.

“What could not be examined or speculated about was how the wrongful votes affected who won or by what number of votes, as how the multiple voters voted was not known, and the steps necessary to undertake such an examination had not been, and could not now be, undertaken,” the judge said.

“The forum's material sent to the council misguidedly sought to speculate about the effect of the multiple voting on the margin of the outcome. But, taken at its highest, it still fell outside the scope of the permissible arguments on a challenge to the decision not to make the plan. However, by contrast to the position on multiple votes, the other issues raised did not advance beyond allegations, for all the strength of the forum's commentary.”

Sir Duncan concluded there was no error of law in the officer's report or in the council’s consideration of it.

He also dismissed the forum’s challenge to whether the council followed planning guidance on split referendum decisions.

Government guidance says councils should set out their decision-making criteria on split results in advance of referendums.

Sir Duncan said the forum submitted Tower Hamlets failed to comply with that advice but without giving reasons.

He said: “Even if it could be argued that the reasons for not following the guidance ought to have been given in the officer's report, I find it difficult to see what point would have been served in doing so.

“The omission of any such reasons from the officer's report could have made no difference to the outcome of the meeting. If material, the point should be considered in the meeting anyway. The factors not considered were related to the conduct of the referendum. I have already concluded that they were immaterial.”

Mark Smulian