Spitalfields Neighbourhood Planning Forum v Tower Hamlets Council

Where separate residential and business referendums on a neighbourhood plan produce different results, the local planning authority may decide whether to make the plan under Planning and Compulsory Purchase Act 2004, s 38A(5). A challenge to that decision cannot indirectly reopen matters relating to the referendum after the statutory six-week period in s 61N(3) Town and Country Planning Act 1990 has expired. Such matters are immaterial at the final decision stage.

An officer’s report is lawful if it fairly informs members of the competing results and relevant considerations. It need not recommend an outcome on an issue of democratic legitimacy. The court assesses the formal decision and reasons, rather than isolated political comments made in debate.

The claimant designated as the neighbourhood planning forum for Spitalfields challenged Tower Hamlets Council’s decision not to make the Spitalfields Neighbourhood Plan. The decision followed separate residential and business referendums required because the area was designated as a business area.

The residential referendum narrowly supported the Plan, while the business referendum rejected it by a substantial margin. The Council relied on the turnout, the strength of the respective votes and the need for the Plan to work for both residential and business communities.

The claimant alleged deficiencies in the officer’s report, failure to investigate alleged voting irregularities, failure to follow planning guidance, and reliance on irrelevant matters. The central issues were the scope of the statutory bar on questioning matters relating to a referendum and the legal adequacy of the Council’s decision-making materials.

1. Claim dismissed. The Council’s decision under s 38A(5) Planning and Compulsory Purchase Act 2004 was lawful.
2. Section 61N(3) Town and Country Planning Act 1990, read with R (Fylde Coast Farms Ltd) v Fylde Borough Council [2021] UKSC 18, adopts a challenge-early approach. Proceedings brought after the six-week period cannot question anything relating to the referendum. That includes alleged multiple voting, undue influence, unlawful campaigning or expenditure, and their asserted effect on turnout, the margin or the result. Those matters could not be deployed indirectly to reduce the weight given to the business referendum.
3. The statutory bar makes such referendum-related matters immaterial at the s 38A(5) stage. Otherwise, an earlier referendum challenge would effectively be revived through a challenge to the later decision.
4. The Council was not required under the Tameside duty to investigate allegations which went beyond the permissible scope of the decision, or to duplicate a police investigation. The judge indicated, without deciding, that a focussed factual allegation such as multiple voting might otherwise have engaged an investigative duty if it were material and had not been accepted.
5. The planning guidance suggested criteria which an authority might identify before a split referendum, including the level of support, relative electorates and neighbourhood characteristics. The Council considered those factors. The guidance did not require the authority to formulate additional criteria in advance, and failure to do so could not have affected the outcome.
6. Applying R (Mansell) v Tonbridge and Malling BC [2017] EWCA Civ 1314, the officer’s report did not materially mislead members or omit advice on a matter requiring explicit treatment. It fairly explained the voting figures, registration arrangements, turnouts, planning status of the Plan and the relevant policy issues.
7. The Masterplan was not irrelevant. Individual councillors’ misunderstandings and heated political comments did not invalidate the decision because the formal minutes and stated reasons were lawful and represented the Council’s operative decision.