Kebbell Developments Ltd v Leeds City Council

A local planning authority has a broad discretion under paragraph 12(6) of Schedule 4B to the Town and Country Planning Act 1990 when deciding whether modifications are needed to secure a neighbourhood plan’s compliance with the basic conditions. The power to correct errors extends beyond typographical mistakes to amendments needed for accuracy and internal consistency.

The statutory requirement to give reasons is satisfied by an explanation which, read fairly as a whole, makes the decision and its basis adequately clear. Paragraph 13 requires post-examination consultation only where a different decision results from new evidence, a new fact or a different view of a particular fact. An examiner’s planning judgment is not itself such a fact. The common law does not impose a wider general duty of consultation where Parliament has carefully prescribed participation in the statutory scheme.

The appellant challenged a local planning authority’s decision to submit the Linton Neighbourhood Plan to a referendum. The independent examiner had recommended deleting a policy concerning land known as “The Ridge” and all associated text. The authority deleted the policy but inserted a short note summarising why the parish council regarded the site as unsuitable for development.

Kerr J dismissed the judicial review claim in [2016] EWHC 2664 (Admin). The appeal raised whether the authority exceeded its modification powers, gave inadequate reasons, or was required to undertake further consultation before the referendum.

1. Appeal dismissed. The authority acted within paragraph 12(6) of Schedule 4B to the Town and Country Planning Act 1990. Paragraph 12(6)(a) confers a broad discretion when an authority decides whether a modification is needed to secure compliance with the basic conditions. Both necessity and the form of the modification involve planning judgment, reviewable only on ordinary public law principles. The statutory power should therefore receive a generous interpretation, and a court should be cautious before finding that it has been exceeded.

2. The power in paragraph 12(6)(e) to correct errors is not confined to typographical mistakes or minor infelicities. It encompasses amendments needed to achieve accuracy and consistency between policies and supporting text. The disputed modification removed the offending policy, preserved general conformity with strategic policy, and corrected the incomplete cross-reference which deletion would otherwise have produced. It was within both paragraph 12(6)(a) and paragraph 12(6)(e).

3. The authority complied with paragraph 12(11) and regulation 18(2) of the Neighbourhood Planning (General) Regulations 2012. Although succinct, its reasons, read fairly as a whole, adequately explained the decision and left no genuine doubt about what had been decided and why. In any event, an inadequacy would not have vitiated the decision. The outcome would plainly have been the same, so relief would have been withheld.

4. Paragraph 13 did not require consultation. Its post-examination procedure applies only where the authority proposes a different decision because of new evidence, a new fact or a different view about a particular fact. An examiner’s conclusions and recommendations embody planning judgment and are not themselves new facts or evidence. The authority’s modification was also consistent with the examiner’s recommendation.

5. The common law did not superimpose a broader consultation obligation upon the detailed statutory arrangements for participation. There is no general common law duty to consult persons affected by a proposed measure. A legitimate expectation could arise from a promise or established practice, but neither existed here. The landowner had already received a fair opportunity to make representations during the examination.

6. Singh LJ agreed and emphasised the distinction between public consultation, which promotes participation in policy-making, and procedural fairness towards a person whose legally protected interests may be affected. Underhill LJ agreed with both judgments.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the authority’s decision to submit the modified neighbourhood plan to a referendum: [2018] EWCA Civ 450.
• Administrative Court, Planning Court: Kerr J dismissed the claim for judicial review: [2016] EWHC 2664 (Admin).