The Manydown Company Ltd. v Basingstoke and Deane Borough Council

A local authority must exercise its powers over land in accordance with the statutory purpose for which the land was acquired and held. A decision not actively to promote development does not, without more, make land unavailable for development or allocation. Availability and active promotion are distinct concepts under PPS3.

A planning authority must assess realistic strategic alternatives without creating artificial constraints. It acts unlawfully if it treats its own temporary non-promotion policy as establishing unavailability, thereby excluding a site from the plan-making process and frustrating the purpose for which the land was acquired. An ouster provision concerning adopted development plan documents does not prevent judicial review of antecedent decisions affecting the parameters of the process.

The claimant, owner of the freehold reversion of the Manydown site, challenged two decisions of Basingstoke and Deane Borough Council. The first was the Council’s refusal on 15 December 2011 to require timely reconsideration of its policy suspending active promotion of the site. The second was the Cabinet’s decision on 23 January 2012 to reaffirm proposed allocations and approve its pre-submission Core Strategy for consultation, excluding Manydown because it was said to be unavailable.

The Council had acquired and continued to hold the land under statutory planning powers for the purpose of promoting comprehensive housing development. The central questions were whether the claim was excluded by section 113 of the Planning and Compulsory Purchase Act 2004, whether the decisions were lawful, and what remedy should follow.

1. Jurisdiction. The claim was not barred by section 113 of the Planning and Compulsory Purchase Act 2004. That provision concerns a relevant development plan document, questioned after adoption within the statutory period. The decisions challenged were antecedent decisions affecting the parameters of the Core Strategy process. A pre-submission consultation draft was not a development plan document within section 113.
2. Statutory purpose. The Manydown land had been acquired and remained held under statutory planning powers for the purpose of promoting housing development. The Council’s internal separation of landowner and planning functions could not displace that continuing purpose.
3. Availability. Active promotion and availability were distinct. A site could be available for development even though its owner was not actively promoting it. The Council had therefore made a fundamental misconception by treating its temporary non-promotion policy as establishing that the site was unavailable under PPS3. The site’s planning merits and competing constraints belonged in the plan-making process.
4. Unlawfulness. The Council’s decision of 15 December 2011 frustrated the statutory purpose for which the land was held, unlawfully fettered reconsideration, failed to take account of a relevant consideration, and was contrary to the principle in Padfield v Minister of Agriculture Fisheries and Food. The Cabinet’s decision repeated the same error. It misapplied policy, relied on an immaterial consideration, involved a material mistake of fact, and was irrational.
5. Remedy. Permission was granted and the claim succeeded. Quashing and mandatory relief were appropriate. The Council was required to reconsider its position on promotion of the land and the form of the pre-submission Core Strategy within a reasonable time. The orders were not to compel promotion of Manydown or require its allocation, but to prevent the Council prejudicing its own plan-making process.

The judgment records that Ouseley J had refused an application for a stay of the consultation process in [2012] EWHC 593 (Admin). The present proceedings were a first-instance rolled-up judicial review hearing.