Developer secures interim injunction halting referendum on draft neighbourhood plan

A property development company has persuaded the High Court to grant an interim injunction blocking a council from holding a referendum on a draft neighbourhood plan.

Mendip District Council had been set to hold the referendum on the draft Norton St Philip Neighbourhood Plan on 17 October 2019.

The background to the case was that the local authority received a report on the panel from an Independent Examiner on 19 July 2019.

Solicitors to the applicant, Lochailort Investments, wrote to Mendip on 2 August, expressing the view that the designation of Local Green Space in Policy 5 of the neighbourhood plan did not meet the basic conditions and therefore the plan could not lawfully proceed to a referendum.

The applicant asked the council to consider the contents of its letter and the (forthcoming) comments of the Local Plan Inspector on the appropriateness of the Local Green Space designations and, for that purpose, to defer consideration of the neighbourhood plan.

The letter also said that if Mendip’s Cabinet decided that the draft neighbourhood plan met the basic conditions without further modifications, it was highly likely that Lochailort Investments would issue proceedings in judicial review to challenge that decision. The applicant did not receive a response to this letter.

On 2 September, the Examiner's recommendations and reasons for them were considered by the council at a Cabinet meeting. Mendip decided to accept the Examiner's conclusions, taking the view that the neighbourhood plan (as modified) complied with the legal requirements.

The Cabinet resolved to "proceed to a referendum of all registered electors within the Norton St Philip Neighbourhood Area to establish whether the Plan should form part of the Development Plan for the Mendip District".

The applicant for the injunction said it intended to file a claim for judicial review seeking to quash the council’s decision of 2 September 2019.

In Lochailort Investments Ltd, R (On the Application Of) v Mendip District Council [2019] EWHC 2633 counsel for Mendip conceded that there was a serious question to be tried and the real issue was where the balance of convenience lies. Nevertheless, he submitted that it was a weak claim which will not succeed.

Mrs Justice Steyn rejected the contention that the claim was weak. She said that on the materials before her, the applicant had a real prospect of succeeding at the substantive hearing.

Turning to the balance of convenience, the judge said an important factor was the general public interest in permitting a public authority to continue to act in the manner which it considers to be in the public interest.

However, she also said that she considered that “the cost, disruption and uncertainty of proceeding with a referendum, in circumstances where the lawfulness of doing so is the subject of a challenge that has reasonable prospects of success, are matters which, in the circumstances of this case, weigh in favour of granting the injunction sought”.

Counsel for Mendip claimed that if the referendum went ahead and then the council’s decision were to be found to be unlawful, there would be no prejudice to the applicant because the result of the referendum would be quashed.

The judge said, however, that in such circumstances, the applicant would have the additional burden of persuading the court to quash the result of the referendum.

She also accepted a submission from the applicant’s counsel that it would cause greater confusion amongst voters if a referendum result were to be quashed, despite the lack of any irregularity in the referendum, per se, than if it were postponed pending a legal challenge.

Both parties sought to contend that the preservation of the status quo was a factor in their favour.

Mrs Justice Steyn said that in her judgment, the status quo was the position at present, before the planned referendum has taken place. “The contrary position is not arguable. Accordingly, preservation of the status quo also favours granting the injunction sought.”

The judge therefore granted the application.