Council calls for end to local plan intervention, claims Housing Minister effectively failed to follow due process

Spelthorne Borough Council is considering a judicial review and has accused the Housing Minister, Rachel Maclean, of effectively failing to follow due process in her effort to intervene in the local authority's local plan process over fears the council was about to withdraw its plan.

The accusation comes after the council took legal advice from William Upton KC of Six Pump Court concerning the intervention letter Maclean sent on 14 September.

Maclean's letter directed the council not to withdraw its local plan under section 27 of the Planning and Compulsory Purchase Act 2004 in order to "give the people of Spelthorne the best chance of having a sound local plan adopted in the near future, protecting the area in which they live from speculative development".

Under section 27(2)(b) of the 2004 Act, the letter directed Spelthorne not to take any steps to withdraw the plan from examination and report monthly to the department's officials on the progress of the examination.

Following the directions, councillors voted to pause the local plan's examination timetable. It has since secured a further pause from the local plan inspector in order to wait for the publication of the revised National Planning Policy Framework (NPPF).

Now, in a letter responding to the intervention, the local authority said it is "still actively considering the option of a Judicial Review" after receiving Upton KC's advice and will await the Government's response to the arguments made in the letter.

The letter also set out the council's concerns over Maclean's intervention and included a claim that Maclean did not give the local authority enough time to respond to her intervention.

The council said that it did not have enough time to respond to Maclean's request that the council state any exceptional circumstances that should be taken into account in relation to the direction.

The letter later said: "It is clear that in line with the Government's own intervention criteria, the department should have given the council the opportunity to put forward any exceptional circumstances before action was taken.

"We have to say it is incredibly disappointing and frustrating that this critical step was not taken. Your department has effectively failed to follow due process, and has then sought to rectify the situation 'after the horse has bolted'.

"This is far from ideal, especially when it appears that this is the first time a formal intervention letter has been issued for several years."

It also argued that the Secretary of State had not treated Spelthorne the same way as other councils in similar situations, stating that Thanet and Wirral councils were given opportunities to explain their "exceptional circumstances".

The letter then went on to rebut Maclean's arguments that little progress has been made on the local plan, that the policies are out of date, that there is housing pressure, and that intervention would have the greatest impact on accelerating local plan production.

The council argues that no further purpose would be served by the Government continuing to intervene and that the "only reasonable course of action would be to withdraw the directions".

The letter added: "Given that the local plan examination is on hold, until the revised NPPF is published, we would expect that you would be prepared, at the very least, to allow the council to consider all its options in accordance with its own duties under the legislation once it has had a chance to consider the implications of the revised national policy on the soundness of the draft plan. This would include the power to withdraw the local plan, if that was the reasonable course of action."

The Housing Minister is expected to respond to the council’s letter shortly to set out her reasoning for intervening and her response to the council’s exceptional circumstance.  

Adam Carey