In Daws Hill Neighbourhood Forum & Ors v Wycombe District Council  a local residents’ association applied successfully to become the Daws Hill Neighbourhood Forum (“DHRA”). At judicial review the High Court had upheld the council’s decision to refuse the application made by DHRA for the designation of a neighbourhood area.
The council designated a smaller neighbourhood area excluding two strategic sites which had been included in the area specified in the application: the former RAF Daws Hill site, and the Handy Cross Sports Centre site.
The council had adopted a detailed Daws Hill Development Hill Brief and committed to a Planning Performance Agreement to progress a planning application for a major residential centred redevelopment. The association had objected to aspects of the Development Brief and the planning application, mainly seeking to reduce the development on the site.
Planning permission had already been given to Handy Cross.
Much of the case turned on sections 61F and 61G which were inserted into the Town and Country Planning Act 1990 (“the 1990 Act”) by the Localism Act 2011 (“the 2011 Act”).
On the face of it the council’s decision fell fully within the terms of the sections. The council had refused DHRA’s application because it considered that the area specified in that application (including the Daws Hill and Sports Centre sites) was not an appropriate area to be designated as a neighbourhood area, but it exercised its power of designation so as to secure that some of the specified area (excluding the Daws Hill and Sports Centre sites) became a neighbourhood area.
The association mainly submitted that the council had acted unlawfully because in exercising its power of designation so as to exclude the two strategic sites from the designated neighbourhood area the council had acted so as to frustrate the purposes of the 2011 Act.
At the appeal the association contended that the discretion conferred by subsection 61G(5) – to decide what is an appropriate area to be designated as a neighbourhood area – was not a discretion to decide whether a given area should or should not be designated as a neighbourhood area, but was limited to deciding what neighbourhood area any given site was to be included in.
With those limitations the council had been wrong to have regard to the wider planning context and circumstances. The residents’ association thought particularly irrelevant the strategic nature of the Daws Hill and Handy Cross sites, their advanced planning status and the council’s view that preparing a neighbourhood plan for such areas would be a further source of expense and of frustration for local residents.
Lord Justice Sullivan ruled that the language used in section 61G did not support the existence of such a limitation.
A power given to a local planning authority to decide whether a specified area was “an appropriate area” to be designated as a neighbourhood area conferred a broad discretion.
The designation of an area as a neighbourhood area was to define the area in which a neighbourhood forum was authorised to use certain planning powers namely: the making of a neighbourhood plan and/or a neighbourhood development order.
A wide range of planning considerations needed taking into account when determining the issue of appropriateness.
The court accepted that if the authority rejected the application on the grounds that the specified area was inappropriate to be designated as a neighbourhood area, subsection (5) then required that the power of designation to be exercised in a particular way.
However, it did not require the power to be used to secure that all of the specified area went into the area that was being designated as a neighbourhood area.
Had Parliament intended that the local planning authority should just decide what designated neighbourhood area any specified area should be included in, it would have required the power of designation to be exercised so as to secure that all of the specified area formed part of a neighbourhood area.
However when laying down how the designation power was to be exercised under subsection 61G(5), Parliament clearly envisaged that a local planning authority might exercise the power so as to designate a smaller area as a neighbourhood area leaving part or parts of the specified area outside that or any other neighbourhood area.
In passing the court mentioned that where the “relevant body” making the application for designation of the area was a Parish Council, the mere fact that the local planning authority was required to consider the desirability of designating the whole of the Parish Council’s area as a neighbourhood area (subsection 61G(4)(a)), did not mean it had to designate the whole, and may exclude part, of the Parish Council’s area, thus ensuring that it would not be included in any neighbourhood area: subsection 61G(3)(b).
The court accepted that the council had been entitled to have regard to that existing planning context and had done what s.61G required of it by designating an area in which the forum could undertake neighbourhood planning without reopening existing strategic sites potentially, requiring a public referendum over a wide area of High Wycombe.
Ironically the National Planning Policy Framework, expects neighbourhood planning to back up strategic development. Developers, will like this decision as constraining how far local residents can use neighbourhood planning to restrict it.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.