High Court dismisses challenge to the Faringdon Neighbourhood Plan

Posted on 26 July 2017 (Permalink)

In the case of Dr Anna Hoare v The Vale of White Horse District Council [2017] EWHC 1711 (Admin), (07 July 2017), Mr John Howell QC, sitting as deputy High Court Judge gave a wide-ranging judgment on the legality of Faringdon Neighbourhood Plan. The plan was being challenged on four grounds, all of them relating to the safeguarding for employment use of Wicklesham Quarry, a Site of Special Scientific Interest for geology which lies in open countryside outside the town of Faringdon in Oxfordshire. The claim was brought by a local resident with the support of a local community group and a crowdfunding campaign. 

The first ground concerned the question if the safeguarding for employment use of a former mineral site currently subject to restoration and aftercare conditions was ‘excluded development’ under the scheme created by the Localism Act. The claimant submitted that the allocation was a ‘county matter’ which could not be included in a neighbourhood plan under section 38B(1)(b) of the Planning and Compulsory Purchase Act 2004, which provides that “a neighbourhood development plan may not include provision about development that is excluded development”. Under section 61K of the Town and Country Planning Act 1990, excluded development includes development that consists of a ‘county matter’, whereas county matters under the Act include ‘the carrying out of operations in, on, over or under land, or a use of land, where the land was or formed part of a site used or formerly used for the winning and working of minerals and where the operations or use would conflict with or prejudice compliance with a restoration condition or an aftercare condition’

The judge agreed with the council that the allocation of Wicklesham Quarry in the way it was provided for in the Plan was not ‘excluded development’. The policy did not prejudice restoration and aftercare because it could be read narrowly. It meant that the allocation of the Quarry could only take effect after both the restoration and aftercare activities (that last for five years after the end of restoration) were completed (even though the policy mentioned ‘restoration’, but not aftercare).

The second ground concerned an alleged error in Faringdon Town Council’s ‘Basic Conditions’ statement. The claimant submitted that the statement failed to note that mineral sites under restoration are not to be considered brownfield sites, under the NPPF. The judge agreed with the claimant. The basic conditions statement had failed to ‘have regard’ to national policy, a mistake that both the Independent Examiner and the District Council failed to correct. Nevertheless, the judge held that that this error was not ‘material’ in the circumstances and did not find the plan unlawful on this ground.

The third ground concerned the requirement that a neighbourhood plan, under paragraph 8(2)(e) of Schedule 4B of the Town and Country Act 1990 be ‘in general conformity with the strategic policies’ contained in the development plan for the area. The claimant submitted that the Council was in error in allocating Wicklesham Quarry for employment use, since it lies outside the settlement boundary. This conflicted with policy GS2 of the Local Plan, which was a ‘strategic policy’ and according to which new building will not be permitted ‘outside the built-up areas of existing settlements, unless it is on land which has been identified for development in the local plan or is in accordance with other specific policies’. The judge concluded that the allocation of Wicklesham Quarry ‘is unarguably in conflict with Policy GS2’. The Plan was therefore unlawfully made.

The judge offered a general discussion of what can be a ‘strategic’ policy in a local plan. At par. 88 he gave a broad account of what counts as a ‘strategic’ policy:

‘Which policies in a development plan warrant that classification will inevitably involve a question of planning judgment that will be framed (but not necessarily exhausted) by the objectives of the particular plan and the policy's significance in relation to their achievement and to the character, use or development of land in the area to which the plan relates which it seeks to promote or inhibit. The more central or important the policy is in relation to such matters the more likely it will be that it may be a "strategic policy" in that plan’.

The fourth ground concerned the contents and the provision of reasonable alternatives in the Strategic Environmental Assessment Directive. The judge agreed with the Council that the Sustainability Appraisal was adequate for its purposes.

Having found that the plan was unlawful on one ground, the judge considered if he should award a remedy. In general, a court has the power, created by the Criminal Justice and Courts Act 2015, to exercise judicial discretion in not quashing an unlawful act ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. In the judge’s view, it was ‘highly likely’ that the Examiner and the District Council would have concluded ‘that the FNP was in general conformity with the strategic policies of the development plan had they realised that Policy 4.5B of the FNP conflicted with Policy GS2’. The judgment concludes that:

‘in those circumstances it appears to me to be highly likely that the outcome for the Claimant would not have been substantially different if the legal error I have identified had not occurred. In those circumstances I must refuse relief on this claim for judicial review’.

The claim was accordingly dismissed.

One final and very important feature of this case was the fact that the Council had gone ahead and made the plan (in December 2016), even though the claimant had brought a claim for judicial review (in November). All other councils that have faced a claim for judicial review of their decision to proceed to referendum, paused the process. In this case the council did not. The council claimed that because the actual ‘making’ of the plan is subject to a different time limit for challenge, the decision to make the plan had now become immune.

The issue became the subject matter of extensive submissions from both sides. The claimant’s view was that what is at issue is also the lawfulness of the plan, not just the decision to proceed to referendum or the decision to make it. An unlawful plan is quashed for all purposes so that the making of an unlawful plan would have to be quashed too, following general principles of public law. This was reflected in what Mr Justice Holgate said in R (Maynard) v Chiltern District Council v Chalfont St Peter Parish Council [2015] EWHC 3817 (Admin), where the court assumed that the unlawfulness of the decision to proceed to referendum ‘taints’ all further decision. The Council disagreed and pointed to the language of the statutory framework which clearly distinguishes the stage of proceeding to referendum from the stage of making the plan. In the end the judge decided he did not have to decide the issue. But he did suggest that he would agree with the council and disagree with Mr Justice Holgate. In his view the language of the statutory framework may have the surprising (and perhaps unintended) result that in a case like this a claimant has to bring two separate claims for judicial review concerning the same plan, one against the decision to proceed to referendum and a second one against the decision to make the plan (if such a decision takes place). In the alternative, a claimant may have to supplement the first claim for judicial review with an application for an interim injunction requiring the council not to proceed with making the plan until the claim is determined.

Pavlos Eleftheriadis is a barrister at Francis Taylor Building. He appeared for the claimant in Dr Anna Hoare v The Vale of White Horse District Council