Legard, R (On the Application Of) v The Royal Borough of Kensington and Chelsea

A local planning authority deciding whether a neighbourhood plan should proceed to referendum must exercise its own statutory judgment. It must consider the examiner’s recommendations and reasons, but is not bound to adopt them.

For Local Green Space designation under paragraph 77 of the National Planning Policy Framework, the requirement that land be close to the community it serves is not a separate free-standing requirement that the land must currently be used by or accessible to the public. The question is whether, in its local circumstances, the land is demonstrably special and of particular local significance to the community, and is reasonably close to it.

Local authority officers and councillors may receive lobbying and hold provisional policy views, provided the decision-maker remains open to the planning merits. The claim was dismissed.

The claimant owned land at Nursery Lane which a neighbourhood forum had proposed designating as Local Green Space in its neighbourhood plan. The defendant’s officers had initially considered that the land was unlikely to satisfy the criteria in paragraph 77 of the National Planning Policy Framework. An independent examiner nevertheless concluded that the designation met the basic conditions.

The defendant accepted the examiner’s recommendations and resolved that the plan should proceed to referendum. The claimant challenged that decision on grounds including apparent bias, procedural unfairness, unlawful appointment of the examiner, misinterpretation of paragraph 77, inadequate reasons, and an unexplained change of position.

The central issues were whether the decision-making process was legally unfair or apparently biased, whether paragraph 77 imposed a separate requirement that the space serve the community through public use or access, and whether adequate reasons existed for the authority’s decision.

1. Claim dismissed. The defendant’s decision of 10 December 2015 to accept the examiner’s recommendations and allow the neighbourhood plan to proceed to referendum was lawful.
2. Under Schedule 4B to the Town and Country Planning Act 1990, the local planning authority must consider each recommendation and its reasons and decide what action to take. The examiner’s report is an important material consideration, but the final decision remains that of the authority.
3. The examiner’s duty to give reasons under paragraph 10(6) is directed to explaining the recommendations and summarising the principal findings. The reasons must be intelligible and address the principal controversial issues, but need not answer every submission or evidential point as if the examiner were determining a planning appeal. The approach in R(Bewley Homes PLC) v Waverley Borough Council was approved and applied.
4. Paragraph 77 of the Framework is to be read as a whole. The requirement that a green area be reasonably close to the community it serves does not impose a separate requirement of current public use, public access or a distinct existing service to the community. The relevant question is whether the area is demonstrably special to the local community and holds particular local significance, with proximity assessed in local circumstances.
5. The examiner had adequate reasons. He considered the site’s tranquillity, views, wildlife, trees, vegetation, historical significance, local representations and relationship with the conservation area. The site’s poor condition and existing horticultural use did not prevent the conclusion that it was demonstrably special and locally significant.
6. The apparent-bias test is whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there was a real possibility of bias. In local-government planning, councillors may have political views and receive representations. Predisposition is not predetermination. The decision-maker must remain willing to consider the merits and change position if persuaded. Applying that test, the defendant was not apparently biased.
7. Fairness is context-dependent. The claimant had a full opportunity to address the merits of the designation at the examination and before the key decision. Any irregular private communications did not cause demonstrable prejudice and did not affect the examiner’s conclusions or the defendant’s decision.
8. The apparent change in the authority’s position was lawful. The examiner’s conclusions, Historic England’s representations and the extent of local concern were new material considerations which rationally explained the authority’s final view.