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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Daws Hill Neighbourhood Forum & Ors, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2013] EWHC 513 (Admin) (13 March 2013) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2013/513.html Cite as: [2013] EWHC 513 (Admin), [2013] PTSR 970, [2013] WLR(D) 101 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of DAWS HILL NEIGHBOURHOOD FORUM STUART ARMSTRONG ANGUS LAIDLAW |
Claimants |
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- and - |
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WYCOMBE DISTRICT COUNCIL |
Defendant |
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- and - |
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(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) TAYLOR WIMPEY UK LIMITED |
Interested Parties |
____________________
(instructed by Messrs Leigh Day & Co) for the Claimant
Suzanne Ornsby QC and Isabella Tafur
(instructed by Democratic, Legal and Policy Services, Wycombe DC) for the Defendant
Morag Ellis QC and Wayne Beglin
(instructed by Messrs Berwin Leighton Paisner LLP) for the 2nd Interested Party
Hearing dates: 21-22 February 2013
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
i) the site known as the RAF Daws Hill Site, andii) the site known as the Handy Cross Sports Centre site (which is also referred to as Wycombe Sports Centre).
The legislative framework
Neighbourhood development orders
"A 'neighbourhood development order' is an order which grants planning permission in relation to a particular neighbourhood area specified in the order—
(a) for development specified in the order, or
(b) for development of any class specified in the order."
Neighbourhood development plan
"A 'neighbourhood development plan' is a plan which sets out policies (however expressed) in relation to the development and use of land in the whole or any part of a particular neighbourhood area specified in the plan."
Neighbourhood forum
"For the purposes of a neighbourhood development order, an organisation or body is authorised to act in relation to a neighbourhood area if it is designated by a local planning authority as a neighbourhood forum for that area."
"61F(5) A local planning authority may designate an organisation or body as a neighbourhood forum if the authority are satisfied that it meets the following conditions—
(a) it is established for the express purpose of promoting or improving the social, economic and environmental well-being of an area that consists of or includes the neighbourhood area concerned (whether or not it is also established for the express purpose of promoting the carrying on of trades, professions or other businesses in such an area),
(b) its membership is open to—
(i) individuals who live in the neighbourhood area concerned,
(ii) individuals who work there (whether for businesses carried on there or otherwise), and
(iii) individuals who are elected members of a county council, district council or London borough council any of whose area falls within the neighbourhood area concerned,
(c) its membership includes a minimum of 21 individuals each of whom—
(i) lives in the neighbourhood area concerned,
(ii) works there (whether for a business carried on there or otherwise), or
(iii) is an elected member of a county council, district council or London borough council any of whose area falls within the neighbourhood area concerned,
(d) it has a written constitution, and
(e) such other conditions as may be prescribed."
"(7) A local planning authority—
(a) must, in determining under sub-section (5) whether to designate an organisation or body as a neighbourhood forum for a neighbourhood area, have regard to the desirability of designating an organisation or body—
(i) which has secured (or taken reasonable steps to attempt to secure) that its membership includes at least one individual falling within each of sub-paragraphs (i) to (iii) of sub-section (5)(b),
(ii) whose membership is drawn from different places in the neighbourhood area concerned and from different sections of the community in that area, and
(iii) whose purpose reflects (in general terms) the character of that area,"
Neighbourhood area
"(1) A 'neighbourhood area' means an area within the area of a local planning authority in England which has been designated by the authority as a neighbourhood area; but that power to designate is exercisable only where—
(a) a relevant body has applied to the authority for an area specified in the application to be designated by the authority as a neighbourhood area, and
(b) the authority are determining the application (but see sub-section (5)).
(2) A 'relevant body' means—
(a) a parish council, or
(b) an organisation or body which is, or is capable of being, designated as a neighbourhood forum (on the assumption that, for this purpose, the specified area is designated as a neighbourhood area). …
(4) In determining an application the authority must have regard to—
(a) the desirability of designating the whole of the area of a parish council as a neighbourhood area, and
(b) the desirability of maintaining the existing boundaries of areas already designated as neighbourhood areas.
(5) If—
(a) a valid application is made to the authority,
(b) some or all of the specified area has not been designated as a neighbourhood area, and
(c) the authority refuse the application because they consider that the specified area is not an appropriate area to be designated as a neighbourhood area,
the authority must exercise their power of designation so as to secure that some or all of the specified area forms part of one or more areas designated (or to be designated) as neighbourhood areas.
(6) The authority may, in determining any application, modify designations already made; but if a modification relates to any extent to the area of a parish council, the modification may be made only with the council's consent.
(7) The areas designated as neighbourhood areas must not overlap with each other.
…
(9) If the authority refuse an application, they must give reasons to the applicant for refusing the application.
…
(11) Regulations may make provision in connection with the designation of areas as neighbourhood areas; …"
Procedure for making a neighbourhood development order and/or a neighbourhood development plan
Neighbourhood Planning (General) Regulations 2012
"(1) Where a relevant body submits an area application to the local planning authority it must include—
(a) a map which identifies the area to which the area application relates;
(b) a statement explaining why this area is considered appropriate to be designated as a neighbourhood area; and
(c) a statement that the organisation or body making the area application is a relevant body for the purposes of section 61G of the 1990 Act."
Relevant policy
The National Planning Policy Framework ("NPPF")
"At the heart of the National Planning Policy Statement is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
…
For decision-taking this means:
- approving development proposals that accord with the development plan without delay."
"183. Neighbourhood planning gives communities direct power to develop a shared vision for their neighbourhood and deliver the sustainable development they need. Parishes and neighbourhood forums can use neighbourhood planning to:
- set planning policies through neighbourhood plans to determine decisions on planning applications; and
- grant planning permission through Neighbourhood Development Orders and Community Right to Build Orders for specific development which complies with the order.
184. Neighbourhood planning provides a powerful set of tools for local people to ensure that they get the right types of development for their community. The ambition of the neighbourhood should be aligned with the strategic needs and priorities of the wider local area. Neighbourhood plans must be in general conformity with the strategic policies of the Local Plan. To facilitate this, local planning authorities should set out clearly their strategic policies for the area and ensure that an up-to-date Local Plan is in place as quickly as possible. Neighbourhood plans should reflect these policies and neighbourhoods should plan positively to support them. Neighbourhood plans and orders should not promote less development than set out in the Local Plan or undermine its strategic policies.
185. Outside these strategic elements, neighbourhood plans will be able to shape and direct sustainable development in their area. Once a neighbourhood plan has demonstrated its general conformity with the strategic policies of the Local Plan and is brought into force, the policies it contains take precedence over existing non-strategic policies in the Local Plan for that neighbourhood, where they are in conflict. Local planning authorities should avoid duplicating planning processes for non-strategic policies where a neighbourhood plan is in preparation."
Factual background
"(i) Gateway to the town – establishing the Handy Cross junction and its environs as a celebrated entrance to the town with high quality new buildings heralding a sense of arrival.
…
(vii) Synergies between major development sites – considering the potential for major development sites in the gateway to play complementary and mutually-supporting roles and ensuring that all such opportunities are seized."
The RAF Daws Hill site
"Timing is subject to a satisfactory scheme being brought forward and the appropriate and timely provision of infrastructure, although it is considered that development could take place over a period of approximately 2014-19."
Paragraph 4.24 of the Position Statement is as follows:
"Given the size and significance of this site an extensive pre-application consultation process will be expected to ensure that the local community have meaningful input into the preparation of proposals for the site."
Handy Cross site
The decision of the Council
- "Any development of the key strategic sites (RAF Daws Hill and Wycombe Sports Centre [otherwise known as Handy Cross Sports Centre]) outside the existing 'immediate' neighbourhood will have implications that impact upon a wider sphere of influence. Strategic issues come into play with the planning of these sites, including any supporting transport measures. There are larger than local impacts and larger 'communities of interest'.
- It is considered likely that if and when a neighbourhood plan, including one or more of the 'strategic' sites, came to examination an Inspector would judge (presuming the emerging plan was found 'sound' and 'compliant') that the referendum would need to take place over a wide area, reflecting the wider 'community of interest'.
- In the interests of the investment of time, energy and cost the resulting work on a neighbourhood plan needs to be well targeted. With planning matters advancing on the two key strategic sites (Wycombe Sports Centre and RAF Daws Hill) this introduces an important consideration of timeliness. An outline planning application is under consideration by the Council at Wycombe Sports Centre, and a planning application for the former RAF Daws Hill site is expected. A Neighbourhood Plan would have to follow the various statutory stages set out in regulations culminating in an Examination and, after that, a Referendum. For both the original and amended areas proposed significant cost is likely to be incurred and it is considered that the investment (not only by the community but also WDC) in such an exercise would not be timely because of the existing and expected timing of planning applications and associated decisions. Furthermore there are other opportunities for input to decisions under consideration for the key strategic sites.
- To designate a Neighbourhood Area to include the full area in the application could unrealistically raise expectations as to the effectiveness of a Neighbourhood Plan in relation to the strategic development sites. The community and the Local Planning Authority cannot stop the submissions of planning applications and the likelihood is that a neighbourhood plan would be overtaken by events. This could lead to frustration and confusion.
- Among the responses received to the original Neighbourhood Area application (whose consultation period ran from 18 May to 29 June) were two from landowning interests in the proposed area objecting to their sites being included therein. One respondent also objected that including the strategic sites at RAF Daws Hill and Wycombe Sports Centre in the Neighbourhood Area would be inappropriate as the proposals at these sites will have 'wider than local' impacts, particularly on strategic transport measures for the southern quadrant area."
The grounds of challenge
"(1) The Government enacted the 2011 Act in order that community input into those development proposals which will have a significant impact on that community can be undertaken by way of Neighbourhood Planning, and through Neighbourhood Forums, Neighbourhood Areas, Neighbourhood Development Plans and Neighbourhood Development Orders, thereby empowering Neighbourhood Forums 'to influence the type, design, location and mix of new development' [Introduction to Neighbourhood Planning at 5/127] in respect of such proposals. That intention is made abundantly clear both by the Act itself and by the published policy documents [The 'Plain English Guide to the Localism Act'; the 'Introduction to Neighbourhood Planning'; and the 'Frequently Asked Questions' document].
(2) The Council was duty bound to act in accordance with that position, pursuant to its duties not to frustrate the purposes of the 2011 Act, and to take into account and further the Government's policy as set out in the documents referred to above…
(3) However, the Council has failed to do so in taking the decision in issue [in] this case; indeed it has done exactly the opposite. In so doing, it has failed to take key material considerations into account (namely, the stipulations set out in the above mentioned policy documents) and/or acted irrationally and in any event has acted unlawfully by acting contrary to the clear purpose of the 2011 Act."
The parties' submissions and discussion
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act [which] must be determined by construing the Act as a whole…"
Mr Stinchcombe submits that the Council, in making its decision as to the extent of the area, acted contrary to this principle by failing, in making the decision, to take into account the purpose of the Act, and that the Council frustrated that purpose. Ms Suzanne Ornsby QC, for the Council, submits rather, the Council has used its discretion to promote the policy and objects of the Act: it has designated a neighbourhood forum in respect of a neighbourhood area, thus enabling the development of a neighbourhood plan to guide planning at an appropriate level in that area, having regard to the characteristics of the area and the neighbourhood forum in question.
"In reaching a judgment about the extent of the area, the Council as Local Planning Authority needs to consider:
- Is the proposed area consistent, coherent and appropriate for neighbourhood planning?
- Is the neighbourhood area an appropriate area to 'plan' for in planning terms?
- Does the proposed neighbourhood area reflect recent/current development proposals in the area?"
"This Supplementary Planning Document provides statutory development guidance for the site that will be used to evaluate planning applications for redevelopment as and when they are submitted.
This brief will assist landowners and developers formulate proposals that achieve wider objectives and to reassure local people about what is considered appropriate and what the benefits and impacts may be. When adopted, it will be used along with other local and national planning policies to guide the decisions made on planning applications within the RAF Daws Hill site."
At section 4 there is an analysis of the site and its context; in section 6 design principles are considered and in section 7 consideration is given to the density of development and the level of housing that the local authority considers is appropriate.
"A reserved matters application for the first phase of development is expected to be made at the end of February and determined in May, with a view to starting on the site by this autumn. Therefore the planning process for the consideration of this site will be complete or committed well before any Neighbourhood Plan is finalised."
At the time of the decision it was very likely that outline planning permission would be granted, which in fact occurred on 20 February 2013.
"It is clear that strategic issues come into play in the planning of these sites, including hard decisions having to be made about resolving the very challenging transport/infrastructure issues in the area, and meeting wider housing and economic development needs, and all of these issues have 'larger than local' impacts. It therefore needs to be carefully considered whether the extent of this proposed neighbourhood area is an appropriate one for neighbourhood planning via the proposed forum."
"The objective of the residents that make up the DHNF appears, and has always appeared, to seek to limit the re-development of this strategic site." (See also DHRA Position Statement, 1 November 2011, page 2).
The Report to Council (Appendix A, para 16) continues:
"Looking at the individual site issues, it is acknowledged that whilst there is a clear statutory strategic planning policy framework in place, there is no site-specific allocation or adopted policy for the former RAF Daws Hill. However, as one of the largest brownfield sites in the District, any development which progresses here will have wider connotations in terms of the ability of the District to meet its development requirements in a way which satisfies the priority given in the Core Strategy and the NPPF to developing on brownfield sites. If the former RAF Daws Hill is developed in such a way as to fail to optimise the site's development potential, then more pressure will be brought to bear on other sites, and the potential benefit of the site to the wider community may be not fully exploited. Therefore, whilst the Council fully recognises local stakeholders' concerns about the planning issues in the area, it is considered that including the former RAF Daws Hill in a Neighbourhood Area and hence any subsequent neighbourhood plan would not be the appropriate approach to address the strategic planning issues for the site."
Conclusion