R (on the application of Kebbell Developments Ltd) v Leeds City Council

Town and country planning – Neighbourhood plan – Referendum – Appellant applying for judicial review of decision of respondent city council to allow neighbourhood plan to proceed to local referendum – Whether respondent acting outside powers in departing from examiner’s recommendations – Whether respondent failing to give sufficient reasons for modifications – Whether respondent wrongly failing to consult on modifications – Appeal dismissed The appellant developer wished to develop a site at the Ridge, Linton, near Wetherby. The respondent city council had earmarked the site for possible housing development. In 2014 the interested party parish council prepared the neighbourhood plan, which went to an examination in 2015. The interested party opposed the development of the site, hoping it might be returned to the green belt. The examiner’s report concluded that, subject to recommended modifications, the plan met the “basic conditions” in para 8(2) of Schedule 4B to the Town and Country Planning Act 1990. The respondent decided to make a number of modifications but went further than the examiner’s recommendations by explaining why the interested party considered the Ridge unsuitable for development. The respondent allowed the modified plan to proceed to a referendum under para 12 of Schedule 4B to the 1990 Act. In a claim for judicial review, the appellant challenged the respondent’s decision to allow the plan to proceed to a referendum before its adoption under section 38A(4) of the Planning and Compulsory Purchase Act 2004. The claim was dismissed by the High Court: see [2016] EWHC 2664 (Admin); [2016] PLSCS 288. The appellant appealed contending that the respondent: (i) acted outside its powers under para 12(6)(a) of Schedule 4B in departing from the examiner’s recommendations when modifying the neighbourhood plan; (ii) failed to give sufficient reasons for its modifications, as required under para 12(11)(b) of Schedule 4B and regulation 18 of the Neighbourhood Planning (General) Regulations 2012; and (iii) in the light of para 13 of Schedule 4B and regulation 17A of the 2012 regulations, ought to have consulted on the modifications. Held: The appeal was dismissed. (1) The power in para 12(6)(a) allowed the authority a broad discretion in considering whether a particular modification was necessary for the purposes of satisfying the basic conditions in para 8(2), It was a matter of planning judgment for the local planning authority, subject to review by the court in accordance with public law principles. But the broad ambit of a legitimate planning judgment on the question inherent in para 12(6)(a) suggested a generous view of the local planning authority’s statutory power. The court should be cautious before accepting an argument that the power had been exceeded. Further, the power in para 12(6)(e) to make modifications for the purpose of correcting errors embraced amendments to achieve accuracy and consistency in the wording of policies and their supporting text. The local planning authority had a wide discretion in judging what errors need correcting, and how. In the present case, the respondent’s modification was comfortably within the ambit of its statutory power to modify a neighbourhood plan before putting it to a referendum. Taken as a whole, it was both a modification under para 12(6)(a), to secure compliance with the “basic conditions” in para 8(2), in particular the “general conformity” requirement in para 8(2)(e), and a modification under para 12(6)(e) for the correction of an error that would otherwise have resulted from confining the modification to the strict terms of the examiner’s recommendation. There was no breach of the statutory procedure and the approach required under para 12 was lawfully followed. (2) The respondent’s succinct reasons could not be regarded as unclear or inadequate. It was plain in the examiner’s conclusions and recommendations that he did not criticise the inclusion of an explanation for the interested party’s opposition to the development and that was not, in itself, the basis for his recommended modifications. The respondent might have amplified its reasons by stating as much but it did not need to do so to comply with the statutory requirements for the giving of reasons in para 12(11) and regulation 18(2). Its reasons were lawful as they stood. They did not fall below the requisite standard. Read fairly as a whole, they provided an adequate explanation of the defendant’s ultimate decision and did not leave room for genuine as opposed to forensic doubt as to what it had decided and why: Dover District Council v CPRE Kent [2017] UKSC 79; [2018] EGLR 1 considered. (3) The procedure provided for under para 13 of Schedule 4B was additional to the provisions in para 9 for the consideration of written and oral representations in the course of the examination of a neighbourhood plan. It was concerned with giving “prescribed persons” in a neighbourhood plan process a fair opportunity to address new evidence or a new fact that had emerged after the examination, or a different view taken by the local planning authority as to a particular fact from that expressed by the examiner in his report – when the local planning authority proposed to make a different decision from that recommended by him. The respondent had promoted a modification to the neighbourhood plan that went further than the modification he had recommended but was wholly consistent with it. That did not engage the requirement for post-examination consultation under para 13. (4) Parliament had made specific provision for participation in the process of neighbourhood plan-making, including the provisions in para 9 of Schedule 4B for the consideration of written and oral representations in the course of the examination, and those in para 13 for the making of post-examination representations. In view of those carefully framed provisions, there was no further and more general duty to consult at common law. The common law did not superimpose on the statutory scheme more demanding requirements for participation and consultation than Parliament had provided in Schedule 4B. Accordingly, there was no breach of any duty at common law: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 and R (on the application of Moseley) v Haringey London Borough Council [2014] 1 WLR 3947 considered. Christopher Young and Christian Hawley (instructed by Walker Morris LLP, of Leeds) appeared for the appellant; Alan Evans (instructed by Leeds City Council) appeared for the respondent; the interested party did not appear and was not represented. Click here to read a transcript of R (on the application of Kebbell Developments Ltd) v Leeds City Council Eileen O’Grady, barrister