The Court of Appeal has passed judgement on the first legal challenge made under the neighbourhood planning provisions of the Localism Act 2011.
The case concerned an application by the Daws Hill Neighbourhood Forum asking Wycombe District Council to incorporate two strategic sites within a designated neighbourhood planning area.
These strategic sites were already being promoted for development, with applications going through the planning process. The district council had approved a tighter neighbourhood boundary than that sought by the forum, excluding the strategic sites. The forum challenged this decision, alleging that the local authority had frustrated the purposes of the act.
Last March, the High Court upheld the council’s decision. The judge held that local authorities have broad discretion under the act in deciding whether or not to designate a neighbourhood area in the form applied for, taking into account the "factual and policy matrix" existing at the time. The neighbourhood forum took the case to the Court of Appeal.
A number of curious arguments were put forward in support of its case, primarily founded on the principle that Parliament’s intention in the act was to create an unbroken "patchwork" of neighbourhood are.
The forum further suggested that where a local authority designates a neighbourhood area but excludes sites forming part of the application for designation, the same application process can be repeated for these excluded parts until the authority is eventually constrained to designate the whole of them.
The Court of Appeal took the view that this is not a sensible interpretation of sections 61F and 61G of the Town and Country Planning Act 1990, inserted via schedule 9 of the 2011 act. It concluded that these sections, which govern the designation of neighbourhood areas and forums, need to be read together. It ruled that the designation function is a power, not a duty, and provides a broad discretion when determining whether or not to designate some or all of a specified area as a neighbourhood area.
For neighbourhood forums seeking to obstruct or restrict development through neighbourhood plans, this decision sends a clear warning that the relevant local authority has the discretion to decide the boundaries of the neighbourhood area. It also confirms that repeated attempts by neighbourhood forums to expand their specified neighbourhood area to cover previously considered sites may also be refused by local authorities, having regard to the relevant circumstances.
The government’s national planning guidance on neighbourhood planning now needs to be updated to reflect the court’s position, principally in recognising councils’ broad discretion when considering neighbourhood area boundaries.
R on the application of Daws Hill Neighbourhood Forum v Wycombe District Council; Ref:  EWCA Civ 228; Date: 6 March 2014
This article appeared in Planning Magazine, 3 April 2014.