Daws Hill Neighbourhood Forum & Ors, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2013] EWHC 513 (Admin)

Case No CO/12288/2012[2013] EWHC 513 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 March 2013
Before
THE HON. MR JUSTICE SUPPERSTONE
Between
THE QUEENClaimantson the application ofClaimantDAWS HILL NEIGHBOURHOOD FORUMClaimantSTUART ARMSTRONGClaimantANGUS LAIDLAWClaimantWYCOMBE DISTRICT COUNCILDefendant(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTInterested Parties(2) TAYLOR WIMPEY UK LIMITEDInterested Party
Paul Stinchcombe QC and Lisa Busch(instructed by Messrs Leigh Day & Co) for ClaimantSuzanne Ornsby QC and Isabella Tafur(instructed by Democratic, Legal and Policy Services, Wycombe DC) for DefendantMorag Ellis QC and Wayne Beglin(instructed by Messrs Berwin Leighton Paisner LLP) for 2 nd Interested PartyHearing Hearing dates: 21-22 February 2013
JudgmentMr Justice Supperstone :Introduction
[1]Daws Hill Neighbourhood Forum (“DHNF”) challenges the decision of Wycombe District Council (“the Council”) made on 25 September 2012 to designate Daws Hill Residents’ Association (“DHRA”), pursuant to section 61G of the Town and Country Planning Act 1990 (as amended by the Localism Act 2011) as a Neighbourhood Forum in a Neighbourhood Area that was smaller than that which DHRA had applied for. The neighbourhood area designated by the Council excluded two sites included in the application: i) the site known as the RAF Daws Hill Site, and ii) the site known as the Handy Cross Sports Centre site (which is also referred to as Wycombe Sports Centre).[2]The Council contend that DHNF, as an unincorporated association, lacks legal personality to make this application. That issue has been addressed by adding Mr Stewart Armstrong and Mr Angus Laidlaw, both of whom are members of DHNF, as Claimants, acting on its behalf, pursuant to the order of Lang J when permission to apply for judicial review was granted on 14 January 2013. Notwithstanding this, the Claimants sought a ruling to the effect that, as a Neighbourhood Forum properly designated under the Localism Act 2011, the DHNF does have legal capacity to make this application for judicial review in its own name. However at the outset of the hearing Mr Paul Stinchcombe QC, for the Claimants, acknowledged that this is now an academic issue and he did not pursue the matter.

The legislative framework

[3]The Localism Act 2011 (“the 2011 Act”) made amendments to the Town and Country Planning Act 1990 (“the 1990 Act”). Sections 61E-61Q were inserted into the 1990 Act, introducing provisions which empower parish councils and designated neighbourhood forums to initiate the process for making neighbourhood development orders and neighbourhood development plans in relation to a designated neighbourhood area.

Neighbourhood development orders

[4]Section 61E(2) of the 1990 Act provides that:
“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

[5]Section 38A(2) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) (as amended by the 2011 Act) provides that “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.”[6]Both neighbourhood development orders and neighbourhood development plans must be in general conformity with a strategic policy as contained in the development plan for that area (paragraph 8(2)(e) of Schedule 4B to the 1990 Act, applied to neighbourhood development plans pursuant to section 38C of the 2004 Act).

Neighbourhood forum

[7]Section 61F(3) of the 1990 Act provides:
“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.”
[8]Section 38C of the 2004 Act (as inserted by the 2011 Act) applies section 61F(3) to neighbourhood development plans.[9]Section 61F(5) of the 1990 Act explains that a local authority may designate an organisation or body as a neighbourhood forum if it meets certain conditions prescribed in that sub-section: “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.” (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, (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,[10]Section 61F sets out in sub-section (7) the considerations which a council must take into account when determining whether or not to designate an organisation or body as a neighbourhood forum. It provides, so far as is material:
“(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,” (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

[11]Section 61G of the 1990 Act deals with the meaning and designation of “neighbourhood area”. It provides, in so far as is relevant:
“(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

[12]Schedule 4B to the 1990 Act makes provision in relation to the process for the making of neighbourhood development orders. Paragraph 7 of Schedule 4B requires a local authority to submit a proposal for a neighbourhood development order for independent examination. If, following that examination, the local authority is satisfied that the draft neighbourhood development order meets the requisite conditions, the authority must hold a referendum on the making of a neighbourhood development order (para 12(4)).[13]The area in which the referendum takes place must, as a minimum, be the neighbourhood area to which the proposed order relates (para 12(7)). The independent examiner considering the proposal must also consider whether the area for any referendum should extend beyond the neighbourhood area to which the draft order relates (para 8(d)). A draft order meets the basic conditions if, inter alia, the making of the order is in general conformity with the strategic policies contained in the development plan for the area for the authority (or any part of that area) (para 8(2)(e)). If the authority considers it appropriate to do so it may extend the referendum area to include other areas (para 12(8)).

Neighbourhood Planning (General) Regulations 2012

[14]Regulation 5 provides:
“(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”)

Relevant policy

[15]Paragraph 14 of the NPPF provides that “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.”

For decision-taking this means:

[16]Paragraphs 183-185 of the NPPF relate to neighbourhood planning, and provide as follows:
“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

[17]The Daws Hill Residents’ Association (“DHRA”) is representative of the Daws Hill locality, a residential community situated on the southern edge of High Wycombe, Buckinghamshire. It was established in September 2011, inter alia, to engage with the Council and Buckinghamshire County Council, in respect of the RAF Daws Hill site and the Handy Cross Sports Centre site, two brownfield development sites in the Daws Hill area which are identified in the Council’s Adopted Core Strategy (July 2008) and the Council’s Position Statement on Housing and Land for Business (July 2011).[18]On 10 April 2012, pursuant to the enactment of the 2011 Act, DHRA applied to the Council for designation as a Neighbourhood Forum with regards to a Neighbourhood Area which included both the existing residential development in the locality and the RAF Daws Hill and Handy Cross Sports Centre sites. Both sites are directly contiguous to the existing residential development within the Daws Hill locality.[19]Daws Hill and Handy Cross are strategic sites. Policy CS4.3 (“High Wycombe Key Areas of Change – M40 Gateway”) in the Council’s Adopted Core Strategy contains the following:
“(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.”
[20]In November 2008 a Handy Cross Site Concept Statement was produced by the Council setting out the principles for the development of this site and emphasising its strategic significance for the District.[21]The Council’s Position Statement on Housing and Land for Business (“the Position Statement”) contains two site-specific policies, PS8 and PS10, relating to the Daws Hill and Handy Cross sites respectively.

The RAF Daws Hill site

[22]The Position Statement followed a decision to decommission the site for military purposes. PS8 refers to land use requirements which includes residential development, a mixed use neighbourhood centre and provision of a range of other on and off site infrastructure and community facilities. The housing mix is to include affordable housing in line with Core Strategy Policy CS13. Under the heading “Delivery”, the Position Statement states that:
“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.”
[23]In June 2012, the Council, in conjunction with Buckinghamshire County Council, published a “Public Consultation Draft Development Brief” (“the Development Brief”) for the site. The Development Brief stated that it had been informed, in addition to certain workshops, by “the on-going discussions of the Daws Hill Reference Group”, which included DHRA. The Development Brief also makes numerous references to the need to integrate any redevelopment of RAF Daws Hill with the surrounding residential development, paying regard to the sensitivity of the boundaries between the site and existing development and the need for integration with regards to infrastructure and transport, specifically along Daws Hill Lane. Section 4 of the Development Brief provides an analysis of the site in its context. Main issues in relation to the site and key responses include the need to integrate the site with its surroundings visually and physically. Main land use issues identify “Need for local centre – to provide focus for current and planned community” and “Intensity and form of residential use in light of the character of existing residential area and the tree constraints”. In October 2012 the Council produced a revised draft of the Development Brief. Following the approval of the Highway Authority’s Southern Quadrant Transport Strategy in December 2012 the Council adopted the Daws Hill Development Brief as a Supplementary Planning Document, made in accordance with the Town and Country Planning (Local Planning) (England) Regulations 2012.[24]The Daws Hill site was purchased by Taylor Wimpey in 2011 and a planning application is expected to be made at the end of March 2013. At the date of the decision it was envisaged that this would be an outline application, which, if granted, would thereafter have required the approval of reserved matters before development could commence (see para 45 below).

Handy Cross site

[25]The Position Statement at PS10 states that the site is proposed as a mixed use development for the following: Public Transport Interchange featuring a coachway and local park and ride facility serving High Wycombe; leisure centre facility; and business park providing up to 36,000m 2 of employment generating floor space, other supporting development and a hotel. It states that reference should be made to principles contained within the Concept Statement produced by the Council in 2008 (see para 20 above). The Council’s Concept Statement proposed the redevelopment of the site for a relocated sports centre and a Transport Interchange. The Statement noted that “Handy Cross is an important and busy junction which plays a key role in both local and regional movement networks” (4/55). Further the Statement identified the need for “the layout, architectural, and landscape approach of the site [to] respond sensitively to adjacent residential properties…” (4/58).[26]On 19 May 2011 outline planning permission was granted for a coachway/park and ride facility; a business park with up to 33,105m 2 of offices, an 150-bed hotel and retention of the existing district leisure facilities. A revised application for outline permission, which includes a retail facility, was submitted on 13 May 2012. On 12 December 2012 the Council resolved to grant outline planning permission for the revised proposal, subject to the completion of a section 106 obligation. A reserved matters application for the first phase of development was expected to be made by the end of February 2013 and determined in May 2013. There is a programme for construction which has a start on site date later this year (see para 46 below).

The decision of the Council

[27]On 31 July 2012 the Council decided “in principle” to approve the officer’s recommendations excluding both sites from the Neighbourhood Area for DHNF. On 25 September 2012 the Council’s Cabinet decided to designate DHNF in respect of a Neighbourhood Area from which both the RAF Daws Hill site and the Handy Cross Sports Centre site were excluded for reasons consistent with the officer’s report. By letter dated 26 September 2012 this decision was notified to DHRA.[28]The reasons for the refusal for the Neighbourhood Area as applied for are as follows:• “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

[29]Mr Stinchcombe in his skeleton argument for the Claimants (at para 34) described the essence of DHNF’s case as follows:
“(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

[30]The parties are in broad agreement that the legislative purpose in introducing the neighbourhood planning provisions into the 1990 Act is to enable neighbourhood forums (and parish councils) which reflect the community in question to make neighbourhood plans guiding development in their neighbourhood area within a strategic planning context. The 2011 Act gives new rights and powers to enable local communities to participate in the planning process within their local area through neighbourhood planning.[31]In Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (where Parliament conferred a discretion on the Minister to appoint a committee of investigation to investigate complaints as to the operation of the Milk Marketing Scheme) Lord Reid said (at [1030]) that:
“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.[32]Mr Stinchcombe asks whether having decided to designate a Neighbourhood Forum under the Act Parliament can have intended that the Council can lawfully exclude from the Neighbourhood Area for that Forum the important development sites in the neighbourhood which will impact most on the local community in the foreseeable future. That, he submits, is what was done in the present case, by the exclusion of the two sites. Section 38(6) of the Act makes clear that the Neighbourhood Forum will have to operate within the parameters of the strategic vision. That is acknowledged by the Claimants. However plainly the fact a site is of strategic importance cannot of itself be a good reason for excluding that site from the Neighbourhood Area.[33]Mr Stinchcombe submits that in legislating to establish Neighbourhood Forums that once designated will have significant planning powers, albeit within the identified constraints of general conformity with the strategic policies of the Development Plan and the requirement for a referendum, the Government was intent upon delegating to Neighbourhood Forums genuinely substantive powers to shape the planning of their neighbourhood.[34]Mr Stinchcombe referred to passages in three policy documents in support of his submission that the Government’s intention in enacting the 2011 Act is for Neighbourhood Forums to have real power to shape their local communities, and to be able to influence “the type, design, location and mix” (“Introduction to Neighbourhood Planning”) of the most important developments in their locality which will “make a big difference” to the lives of those who live there (“Plain English Guide to the Localism Act”; and see “Neighbourhood Planning – Frequently Asked Questions”). Mr Stinchcombe submits these documents contain an accurate summary of the purpose of the regime created by the 2011 Act. He accepts that they cannot be used as an aid to construction. However he contends that they do not contain material inconsistent with statute or regulations. Ms Ornsby observed that being so there was no need for her to address their contents. Moreover she submits that it is not appropriate for the authority to have regard to them as material considerations.[35]The Council erred in law, Mr Stinchcombe submits, in that it failed to take into account the character of the area by excluding development sites which are part and parcel of a single area. The Council itself considers the wider community of Daws Hill to be a neighbourhood which is made up of constituent parts, including the two sites. The purpose of the Act is to promote neighbourhood planning and to enable the local impact of proposed development to be considered at the local level. Therefore there must, he submits, be an obligation to look at the character of the area. A neighbourhood is an area identifiable by reference to its geography, community and character. It is no surprise therefore that section 61F(7)(a)(iii) pre-supposes that a neighbourhood area has a character. The word “neighbourhood” must have the same meaning in sections 61F and 61G. The notion of character of an area must, he submits, translate through to section 61G from 61F.[36]The Council, Ms Ornsby submits, did in fact have regard to the character of the area, but she and Ms Morag Ellis QC, for Taylor Wimpey, do not accept that the requirement in section 61F(7) to have regard to “character” transfers to section 61G. I agree. There is no similar provision in section 61G(5) equating to that in section 61F(7)(a) which lists factors which must be taken into account in deciding whether to designate an organisation or body as a neighbourhood forum. Section 61F(5) sets out conditions which must be satisfied before the status of neighbourhood forum, a new body created by the 2011 Act, can be acquired; by contrast, no such conditions have to be satisfied by parish councils, bodies that have a long history. Distinctions between parish councils and neighbourhood forums are carried over to section 61G. There is no provision in a non-parish case for the authority to have regard to the desirability of designating the whole of the specified area as a neighbourhood area (see section 61G(4)(a)).[37]Section 61G gives a local authority a discretion as to whether to designate the entire area applied for as a neighbourhood area or designate only part of that area. Section 61G(5) requires the local planning authority to consider whether the area specified in the application is or is not an appropriate area to be designated as a neighbourhood area. Section 61G(4) sets out two matters which the local authority must have regard to, neither of which is relevant in the present case. Regulation 5 of the Neighbourhood Planning (General) Regulations 2012 requires bodies applying for the designation of the neighbourhood area to include with their application, a statement explaining why that area is considered appropriate to be designated as such. It follows, Ms Ornsby submits, that the authority cannot be precluded from considering the appropriateness of the proposed area. An authority is not bound to designate the area proposed if it considers that it is not an appropriate area for designation. In such circumstances however it “must” designate at least some of the area sought (section 61G(5)).[38]The statement explaining why the specified area was considered appropriate to be designated as a Neighbourhood Area was set out in a letter dated 31 August 2012 from DHRA to Mr Unsworth, Head of Planning and Sustainability at the Council. DHNF is stated to have been set up to prepare a Neighbourhood Plan for the proposed Neighbourhood Area.[39]The Council’s Report to the Cabinet containing the recommendation to Council states at paragraph 20:
“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?”
[40]Mr Stinchcombe does not suggest that the Council misdirected itself by considering these matters when making the decision to exclude the two sites from the area to be designated. Further Mr Stinchcombe accepts that the question as to whether any given site is appropriate for designation is a matter for the judgment of the Council. Ms Ornsby submits that Parliament has given local authorities a wide discretion when determining the issue of an appropriate area; the reason for that, she suggests, is that under the statutory regime of the 1990 and 2004 Acts it is essentially the local planning authority for the district that has overall responsibility for public planning of the area as the decision-taker and the plan-maker for the district in respect of which it is the only authority responsible for the strategic planning of its area. Therefore, she submits, it is proper that it should have a wide discretion as the local planning authority for the purposes of ensuring that the area is properly planned for in the public interest.[41]Whether an area is appropriate or not for designation turns, Ms Ornsby submits, on the specific factual and policy matrix that exists at the time the decision was made. Ms Ellis notes that there are no transitional provisions in the legislation which is significant because it means that any neighbourhood planning decision is to be determined in the existing planning context. This is another reason, she suggests, why a wide discretion is given to the local planning authority; each exercise of discretion turns on its own circumstances.[42]In my judgment section 61G(5) does give the planning authority a broad discretion when considering whether the specified area is an appropriate area to be designated as a Neighbourhood Area. In exercising that discretion the authority should, in my view, have regard to the particular circumstances existing at the time the decision is made. Accordingly I now turn to consider the policy and factual position that existed at the time the decision was taken by the Council. First, there is the Adopted Core Strategy of July 2008 which comprises a Development Plan. It provides some guidance on the Handy Cross site (CS4.3), but not on the Daws Hill site which was not being released at the time (beyond the indication that if the site does become available it will potentially be caught by the policy: CS4.3(viii)). Subsequently in the light of the pending release of the Daws Hill site and to provide further guidance on bringing forward the Handy Cross site, there was the Position Statement of the Council made in July 2011. Daws Hill is considered at PS8 (see para 22 above). The position with regard to Handy Cross Sports Centre is set out at PS10 in the Position Statement (see para 25 above).[43]As for emerging policy, there is the Southern Quadrant Transport Strategy. The highway authority, in consultation with the Council as planning authority and Daws Hill Reference Group (see Unsworth W/S, para 4(b)) have embarked on preparing a comprehensive transport strategy generally for the area and specifically for the delivery of the two sites. At the time the decision was taken transport measures were being progressed in connection with these two sites; they were very well developed and had been the subject of consultation. Following the approval of the Southern Quadrant Transport Strategy in December 2012 the Council adopted the Daws Hill Development Brief (see para 23 above). Section 2 of the Development Brief describes the Brief’s purpose and structure as follows:
“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.[44]Ms Ornsby submits these policy documents make clear that at the time the in principle decision was taken by the Council a very detailed, fairly prescriptive policy framework was in the process of being completed which was addressing type, design, and mix for the Daws Hill site which was the subject of substantial consultation that has now been completed.[45]The factual position in relation to the stages in the planning process was as follows. At the time an outline application was contemplated; a full application is now imminent, due by end of March 2013 (see second witness statement of Mr Armstrong, a Planning Consultant advising Taylor Wimpey, at para 9). Mr Unsworth states it is now anticipated that commencement of development will be in early 2014 (W/S para 4(f)). The Council’s Annual Monitoring Report dated December 2011 noted, in respect of former RAF Daws Hill “Anticipated commencement before 1 April 2014, with 213 dwellings before 1 April 2017 and 270 after”. Ms Ornsby submits that a perfectly reasonable professional judgment was made by the Council on the facts known at the time as to the timeliness of the development of the Daws Hill site; it was not a matter of “crystal ball gazing”, as Mr Stinchcombe suggested.[46]Again in relation to the Handy Cross site, it was a matter for professional judgment as to when the site was likely to come forward. Outline planning permission was granted on 19 May 2011. On 12 December 2012 the Council resolved to grant outline planning permission subject to completion of a section 106 obligation for a revised application. Mr Unsworth said at paragraph 5 of his witness statement:
“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.[47]The Report to Cabinet contains an analysis of how long it would take for the neighbourhood plan process in relation to the proposals for Daws Hill Neighbourhood Area by DHRA to be completed (at pp.119-120). Ms Ornsby submits that the estimate of up to 21 months is a perfectly reasonable judgment which has not been disputed by the Claimants. The reality therefore is that by the time a neighbourhood plan is in place development of the Daws Hill site will have commenced and the process in relation to Handy Cross will be well underway.[48]Further there has been substantial consultation undertaken in respect of bringing forward these two sites (see witness statement of Mr Unsworth at para 2 in relation to the Southern Quadrant Strategy; and at para 3 in relation to the RAF Daws Hill Development Brief). Mr Unsworth (in particular in his witness statement at paras 4(b) and (c) and 9(c)) and Mr Armstrong (in his second witness statement at paras 24-34) detailed the substantial consultation that has been undertaken and is further planned in respect of the planning application for the RAF Daws Hill site and other opportunities for those that comprised the Neighbourhood Forum to be engaged in the planning decisions relating to these strategic sites. Ms Ellis referred to the proposed extension and strengthening of the provisions for public consultation and engagement in the statutory planning system by ss.61W-Y of the 1990 Act, added by s.122 of the 2011 Act. Although not yet in force, they are, she submits, material to the construction of the 2011 Act and the issue of Parliamentary intention and statutory purpose.[49]Five reasons are given for the refusal for the Neighbourhood Area as applied for. These reasons must, Ms Ornsby submits, be read as a whole.[50]Mr Stinchcombe criticises the reasons in a number of respects. He submits that the first reason misses the point that any Neighbourhood Development Plan will have to accord with the strategic vision of the Local Planning Authority in any event. The Council’s reason is based, he suggests, upon the false premise that, because a development site may have wider than local impact, the local community should have no role in influencing matters as a Neighbourhood Forum and through Neighbourhood Development Plans, even over local impacts. Further Parliament has enacted provisions that provide for Neighbourhood Areas which cross local planning authority boundaries to be designated (section 61(I) of the Act), and for a referendum to extend beyond the neighbourhood area to which the draft order relates, if necessary (Schedule 4B, para 8(1)(d) and para 12(8)). Mr Stinchcombe submits that there was a manifest failure by the Council to take into account the indivisible character of the area. The two sites fall within the Daws Hill neighbourhood. There is no reference in the decision to character or site characteristics. The two sites form part of an existing neighbourhood that could be served by a local centre. There is no justification for excluding the two sites and severing the neighbourhood. If therefore, as the second reason for the decision, suggests, it is likely that a referendum will need to take place over a wide area, reflecting the wider “community of interest”, the legislation has provided for that to take place. As for the concern for the interests of the investment of time, energy and cost (the third reason) this, Mr Stinchcombe submits, is “crystal-ball gazing” because no-one can possibly know when any scheme will finally be approved and implemented for either site. The proposed Neighbourhood Area would enable DHNF to have influence on development proposals for those sites. It is wrong to assert that to designate a Neighbourhood Area for DHNF which included the two sites would inevitably be a waste of time and resources. The fourth reason is also flawed. It is the refusal to designate these development sites within DHNF’s Neighbourhood Area which frustrates both DHNF and the purpose of the Act. The fifth reason relating to the views of two landowners objecting to the inclusion of their land in the Neighbourhood Area, the parties are agreed, takes the other reasons no further.[51]Ms Ornsby submits that all the reasons given for the decision arise from the policy and factual matrix that the Council properly had regard to when determining whether the proposed neighbourhood area is appropriate. The reasons, she submits and I agree, need to be looked at in the context of the report and supporting documentation that informed those reasons. Appendix A to the Officer’s Report sets out the background and issues, the consultation responses and the options available to the Council. At paragraph 12 it is noted:
“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.”
[52]Ms Ornsby submits that in considering whether the proposed neighbourhood area was appropriate, it was open to the Council to take into account the strategic nature of the Daws Hill and the Handy Cross sites, and to find that there was a substantial mis-match between the proposed neighbourhood forum and the area which it sought to control.

(e) of his witness statement) that:

“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.”
[53]Ms Ornsby submits that these points translate into the first of the reasons given in the decision. This was, she submits, plainly a matter of judgment for the Council and it would have been wholly wrong to leave these points out of account. It does not follow that strategic sites cannot be the subject of a Neighbourhood Area; however it was not appropriate for them to be so in the present case.[54]If at the outset of the process it appears likely there will have to be a referendum over a wider area than the proposed neighbourhood area that consideration, in my view, reinforces the Council’s concern that there is a mis-match between the area represented by the DHNF and the area it sought to control for the purpose of neighbourhood planning. Moreover if a referendum is to be conducted over a wider area for the Neighbourhood Plan to be successful it may require the support of at least 50% of the vote of those outside the neighbourhood area proposed by the DHNF, who have not previously been involved in the preparation of the plan.[55]Local authority resources are limited. Having regard to the stage that had been reached in relation to planning matters affecting the two strategic sites and the time it would take for a Neighbourhood Plan to complete the various statutory processes, the Council was entitled to consider if any useful purpose would be served by the proposed Neighbourhood Area when the sites would be under development before the process was concluded.[56]If the likelihood is that a neighbourhood plan would be overtaken by events, the proposed neighbourhood area designation will not influence the outcome of the planning applications in respect of the two sites, which could, as Ms Ornsby submits, well lead to frustration at local level.

Conclusion

[57]Section 61G(5) of the 1990 Act (inserted by the 2011 Act) requires the local planning authority in determining an application for a neighbourhood area to consider whether the area proposed is appropriate. The discretion given to the authority is a broad one. The exercise of discretion turns on the specific factual and policy matrix that exists in the individual case at the time the determination is made. In my judgment the Council properly had regard to the specific circumstances that existed at the time when the decision was made to designate a Neighbourhood Area which excluded the RAF Daws Hill site and the Handy Cross Sports Centre site. None of the grounds of challenge to the decision taken by the Council in this case have been made out.[58]Accordingly, for the reasons I have given, this claim fails.

Cited in 1 later judgment