High Court upholds decision not to make neighbourhood plan after split referendum

Neighbourhood plan

The High Court has upheld the decision of Tower Hamlets Council (“the Council”) not to adopt (or “make”) the Spitalfields Neighbourhood Plan after it was supported in a residential referendum, but rejected in a business referendum.

Where a neighbourhood plan is proposed in an area that the local planning authority considers to be “wholly or predominantly business in nature”, the authority may also designate the neighbourhood plan area a “business area”: s. 61H, Town and Country Planning Act 1990. The effect of that designation is to require a neighbourhood plan to be subject to two local referenda: a referendum of residents who live in the neighbourhood plan area (the residential referendum) and a referendum of non-domestic rate payers with businesses in the area (the business referendum). If the neighbourhood plan is supported by a majority of voters in one referendum, but rejected by a majority of voters in the other, the local planning authority must decide, in its discretion, whether or not to make the neighbourhood plan: s. 38A(5), Planning and Compulsory Purchase Act 2004.

In November 2021, the Spitalfields Neighbourhood Plan was supported by a majority of voters in the residential referendum, but rejected by a majority of voters in the business referendum. On 5 October 2022, having debated the results of the referenda, the Council decided not to make the neighbourhood plan.

The body that had promoted the plan, the Spitalfields Neighbourhood Planning Forum, challenged by judicial review the Council’s decision not to make the plan. Many of the arguments made by the Forum in the claim questioned the integrity of the result of the business referendum. The Forum sought to rely on evidence of what it claimed was unlawful voting, breaches of campaign financing rules, and improper attempts to influence how some had voted. The Forum also challenged the adequacy of the report prepared by the Council’s officers on the results of the referenda, in which they had concluded that they should not, as unelected officials, give a recommendation to Members on how they should interpret the results of the two democratic polls.

Sir Duncan Ouseley, sitting as a High Court judge, dismissed the Forum’s claim for judicial review. Applying the Supreme Court’s judgment in R (Fylde Coast Farms Ltd) v Fylde Borough Council [2021] UKSC 18, [2021] WLR 2794, the judge agreed with the Council that many of the Forum’s arguments were an impermissible attempt to bring a late challenge to matters “relating to” the business referendum, even if the Forum was not directly challenging the referendum result. Such arguments were not permissible in a challenge to the later decision not to make the neighbourhood plan because a challenge to “anything relating to a referendum” can only be brought by a claim for judicial review filed within 6 weeks of the day after “the day on which the result of the referendum is declared”: s. 61N(3), TCPA 1990: [33]. The judge added:

“34. Multiple voting, which was [the Forum’s] most, indeed only, well-founded factual allegation, its effect on the turnout and the comparison with the turnout in the residential referendum cannot be sensibly described as not “relating to” the referendum. Still less can the allegations about its effect on the result or the margin of victory be described as not “relating to” the referendum. It was only of interest to the Forum in these proceedings because it was something which did relate to the referendum. The challenge barred is not just to the result, however widely that is defined; it is not a word used in the TCPA 1990 in this context. […]”

The judge also rejected the Forum’s complaints about the adequacy of the officers’ report, finding that it was not “at all” misleading, nor did it contain a material omission: [43].

The case is understood to be the first time that a court has considered the scenario of a neighbourhood plan being supported in one local referendum, but not the other.

Gwion Lewis KC acted for the successful party, Tower Hamlets Council.

The judgment may be found here.

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