Why a legal challenge led to the quashing of a Buckinghamshire neighbourhood plan’s housing policies.
“…developers and land traders with deep pockets can employ lawyers to comb neighbourhood plans for the inevitable minor errors and oversights … and then pursue unrelenting legal action contesting those neighbourhood plans until the will or financial ability of communities who created them to defend those plans is exhausted…”
Experts have suggested that councils might need to provide better support to volunteers undertaking neighbourhood planning after developers successfully quashed the housing element of a neighbourhood plan adopted last September.
Earlier this month developers successfully quashed the housing element of a Buckinghamshire neighbourhood plan adopted in September last year. Aylesbury Vale District Council (AVDC) decided to drop its fight against a judicial review brought by developer Lightwood Strategic to the Haddenham Neighbourhood Plan. In doing so, it accepted that an error by volunteers preparing the plan meant that it was unlikely to win the challenge and conceded defeat.
Haddenham Parish Council, which prepared the plan, accepts that it submitted erroneous sustainability score for two sites being assessed for housing allocations. The score for a site being promoted by Lightwood was lower than it should have been, while another site had been marked too high. While the parish council claims this made no material difference to the outcome, Lightfoot argued – and the district authority conceded – that its site received a lower allocation of homes than it would have done under the correct scoring.
James Sorrentino, co-director at Lightwood, expressed frustration that the error did not halt the plan at an earlier stage. He said: “Throughout each consultation process, we and other developers and local residents made representations that mistakes had been made. However, it wasn’t until a judicial review was raised that an error was admitted that invalidated the housing part of the plan.”
However, in May 2015, the independent examiner of the plan, Nigel McGurk, said that the mistake should not prevent the plan going to referendum. His report said: “I am mindful that neighbourhood planners, by their very nature, tend not to be professional planners. There are examples – especially in neighbourhood planning – of where the ‘experts,’ whether planners, lawyers or other practising professionals, have failed to properly grasp legislation. Given this, it would seem unreasonable to expect neighbourhood planners to get everything right all of the time. Most of us are human and we make mistakes.”
Carole Paternoster, cabinet member for growth strategy at AVDC, claimed that the decision to drop the case has no impact on other neighbourhood plans being brought forward in the district. “This decision should not be seen as a lessening of the authority’s support for neighbourhood plans generally, as the exact circumstances of this case are very specific to the Haddenham Neighbourhood Plan,” she said. However, Paternoster added that the council will review what measures might be put in place to reduce the chances of similar errors occurring again.
The outcome of the case suggests that councils might need to provide better support to volunteers undertaking neighbourhood plans in future, according to Stephen Tapper, spokesman on neighbourhood planning for the Planning Officers Society. He said: “The fact is that a neighbourhood plan has to be approached with the same rigour as a local plan. It needs close cooperation from the council in order to get a robust solution. That needn’t undermine the independence of those preparing the plan.”
And Jamie Lockerbie, associate at law firm Pinsent Masons, said that instances in which a neighbourhood plan has to allocate sites due to the absence of an up-to-date local plan, such as at Haddenham, are particularly risky. He said: “If there had been a local plan in place then the neighbourhood plan would not have been able to depart from these policies. Either you wait for a strategic plan to follow or you push ahead, but that puts a bigger burden on you in terms of evidence required, and the greater the risk of a challenge.”
If implemented, the Housing and Planning Bill’s proposed “permission in principle” measure could mean that councils will become keener to ensure plans are robust before they go to examination and referendum in future, according to Neil Homer, planning director at community planning consultancy rCOH. He said that, should a neighbourhood plan seek to make allocations for the proposed permission in principle, “it is going to increase the risk of legal review by parties that have not been favoured in the plan”.
This, Homer said, could make planning authorities demand that neighbourhood plans making allocations provide more evidence than is currently required. He said: “It is only going to make councils more risk averse. Given it is them, not parishes, that have to deal with judicial review and the costs, you can see that they are going to want to see more to be happy about making decisions on whether plans go to referendum.”
The parish council, upset that the district ended the fight against Lightwood, said that the outcome could even threaten the entire or neighbourhood planning process. In a statement, it called for “urgent action by central government to prevent a situation where developers and land traders with deep pockets can employ lawyers to comb neighbourhood plans for the inevitable minor errors and oversights … and then pursue unrelenting legal action contesting those neighbourhood plans until the will or financial ability of communities who created them to defend those plans is exhausted.”
Lightwood co-director Phil Chichester also suggested – from a very different viewpoint – that the survival of neighbourhood planning is at stake. He said: “We believe that neighbourhood plans can be very successful as long as the checks and balances are properly adjudicated, otherwise poorly managed neighbourhood plans will soon ruin the reputation and concept of neighbourhood planning in its entirety.”