Waverley Borough Council, R (on the application of) v Waverley Borough Council Counting Officer

The court may restrain an electoral process before the vote only in exceptional circumstances. Such circumstances arise where the process would produce an unlawful result, including where voters are not provided with the documents required by the governing regulations or are asked to vote on materially different documents from those lawfully approved for the referendum.

The claimant council sought judicial review of referendum processes for two proposed neighbourhood plans. After the council accepted the independent examiner’s recommendations, referendums became mandatory. The documents published for voters were later found to contain material errors, including incorrect maps, site allocations and settlement boundaries. Postal ballots had already been issued when the claim was brought. The central issues were whether the referendum processes could be restrained and whether the claim should succeed.

1. The court granted permission and allowed the substantive claim for judicial review.
2. In electoral matters, the court must exercise restraint before granting an injunction unless exceptional circumstances are demonstrated. The court applied the approach in R (Begum) v Tower Hamlets LBC [2006] EWCA Civ 733.
3. Exceptional circumstances existed. If the referendums proceeded, the result would be unlawful because the proposed neighbourhood plans had not been provided to voters in the form required by Regulation 4 of the Neighbourhood Plan (Referendums) Regulations 2012.
4. The electorate would also have voted on draft plans materially different from the plans approved by the independent examiner and adopted by the council as the plans on which the referendums were to be held.
5. The legislative framework provided no appropriate or effective alternative mechanism for correcting the mistake or stopping the process. The defendant was therefore restrained from proceeding pending determination of the claim, and the substantive claim succeeded.