We covered the Marydown case The Manydown Company Ltd. v Basingstoke and Deane Borough Council  EWHC 977 (Admin) (17 April 2012) – a few weeks ago. As we said
it refused to consult as a reasonable alternative 809 ha of land at Manydown, even though it purchased it (the original owner retained an option agreement) 16 years ago precisely to develop as housing. It is the owner of the option agreement that is now the challenger.
Justice Lindblom issued his high court decision on Monday who sets the background
In 2005 the Council unsuccessfully proposed the Manydown site for development in its local plan process. But after a change of administration in 2006 the Council decided to suspend its involvement in the active promotion the site for development. This remains the Council’s position. As landowner it has decided that it will not review this position until after the Core Strategy has been formally adopted. And as local planning authority it has also decided that the Manydown site is not available for development, and therefore that the site should not be identified for development in the Core Strategy. The claimant says that the Council has relied on its decisions in 2006 and 2009 as a basis for preventing the inclusion of the site in the Core Strategy, that its refusal to reconsider those decisions betrays a determination not merely to hold off promoting the development of the land but actively to prevent itself from including the land in the Core Strategy, binding itself instead to a position that thwarts the development of the site. This, says the claimant, is plainly unlawful. By refusing even to reconsider its position the Council has prevented itself from considering circumstances as they now are, and has shut out the possibility of the Manydown land being allocated for development to fulfil the purpose for which it was acquired. This, says the claimant, is directly contrary to the objectives of the relevant statutory power. None of that, however, is conceded by the Council. It says it has acted lawfully throughout, in accordance with its statutory duties and without exceeding its statutory powers.
On the key issue of whether JR should await conclusion of the plan process
In a case such as this an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle, it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right.
On the issue of wether the site was ‘available’
the Cabinet’s decision was irrational. If it had directed itself properly on the facts before it, the Cabinet could not reasonably have reached the conclusion that the Manydown site was not available. There was no logical or defensible basis for the decision it took. If the Council’s true position was that, despite the continuing suspension on the site’s promotion for development, it remained available for development, and that there was no reason why it should not come forward for development in the course of the Core Strategy period, the Cabinet appears not to have appreciated that this was so.
Justoce Lindblom in the key sentence, of a very complicated judgement, stated
If the claimant’s true remedy is to be found in the Core Strategy process, it is of paramount importance that the proceedings in that forum are not distorted before they begin…
the Council’s conduct as landowner is not, in itself, a matter for consideration in the plan-making process. The Inspector will have to judge whether the Core Strategy itself is sound, not whether the prior decisions of the Council as landowner were lawfully taken. … until the Council as landowner has properly addressed its responsibilities in that role, and has done so with a firm grasp of the statutory purpose for which it acquired the Manydown land, the claimant will face an unfair disadvantage as a party to the Core Strategy process. Without the intervention of the court, there seems little prospect of that disadvantage being removed in time for the Manydown site to be effectively and fairly considered in the consultation and subsequent stages of the Core Strategy process.
It is necessary to require the Council to do two things: first, to reconsider its position on the promotion of the Manydown land in the light of what I have said about its responsibilities as landowner, and second, to reconsider the form of its pre-submission Core Strategy in the light of what I have said about its responsibilities as local planning authority. The effect of the order I intend to make should not be misunderstood. It is not to force the Council as landowner to promote the Manydown land for allocation in the Core Strategy. Nor is to force the Council as local planning authority to support such an allocation, or to depart from the strategy it has chosen. Rather, it is to ensure that neither as landowner nor as local planning authority, and neither by anything it does nor by anything it fails to do, will the Council prejudice its own Core Strategy process.
So to conclude early JRs are now more likely at pre-submission stage rather than going through the whole examination process and then being found unlawful, as has been found in the Forest Heath related SEA directive cases. This makes sense to avoid cost and further delay.
Lindblom seems to clear up conflicting caselaw on whether early JR on consultation plans is permitted under the act or not. Again it underlines the point, you have to include reasonable alternatives in plans even if you dont wish to support them.
Since Inspectors findings are de-facto bindings, althoiugh after the localism act the LPA will have to put forward themselves to make the plan sound – on a ‘please sir can I have another’ basis, LPAs may be forced to put foward major options they do not agree with, which mow having been consulted on and SEAd would be fully lawful.
Put simply LPAs will not be able to avoid dealing with alternative options with which they disagree. The will need to evidence and convince their case, not by procedural means trying to omit its consideration.