Paul Stinchcombe QC appeared on behalf of the Daws Hill Neighbourhood Forum in R (Daws Hill Neighbourhood Forum) v Wycombe District Council and others [2013] EWHC 513 (Admin), the first legal challenge made under the neighbourhood planning provisions of the Localism Act 2011.

The case concerned the proper interpretation of section 61G(5) of the Town and Country Planning Act 1990, inserted into the 1990 Act by Schedule 9 of the 2011 Act. In particular, section 61G(5)(c) contemplates the possibility of a Council deciding that an area specified in an application for designation as a Neighbourhood Area is not an appropriate area to be so designated. The question, however, was for what purposes could a Council so decide and, in particular, whether a Council could lawfully decide to exclude from a designated Neighbourhood Area all of the important development sites within the locality, precisely because they were important development sites?

Mr Justice Supperstone held that a Council could so decide, finding as follows: (1) the discretion vested by section 61G(5) in Local Authorities to decide what is an appropriate area to be designated as a Neighbourhood Area was a broad one not a narrow one; within the breadth of this discretion, Local Authorities were entitled to take into account the policy and factual matrix that existed at the time of decision so as to exclude strategic development sites from a Neighbourhood Area; and that Local Authorities were entitled to disregard the character of the locality, so as to be able lawfully to sever strategic development sites from the Neighbourhood Area even if they were of the same character as the Neighbourhood Area.

The implications of Mr Justice Supperstone’s Judgment for the future of Neighbourhood Planning are clearly profound. In particular, if it is right that a Council is vested with a discretion under section 61G(5) of the Town and Country Planning Act 1990 as wide as Mr Justice Supperstone found it to be, it would appear to be open to any Council to refuse to include any development site in any Neighbourhood Area for a very large number of potential reasons, subject only to a potential challenge on the grounds of Wednesbury unreasonableness. That would place Councils, rather than Neighborhood Forums, in the driving seat of Neighbourhood Planning and empower them to prevent Neighbourhood Forums from seeking to promulgate Neighbourhood Development Plans or Neighbourhood Development Orders over any sites in respect of which the Council wanted exclusive control.

The Neighbourhood Forum has been granted permission to appeal under cover of a Protected Costs Order. The appeal is listed to take place in early 2013.