Council agrees to prioritise legal challenge over withdrawing local plan, following warning from minister

Councillors were initially set to vote on a motion on Monday that would have seen the council withdraw its local plan, despite directions issued by Matthew Pennycook in July requiring the authority to progress the plan without delay.

However, a last-minute amendment saw members agree to prioritise a judicial review challenge, with withdrawal retained as a last resort should the legal action fail.

The council has been considering legal action against the Government since September, when members backed a motion calling for a judicial review of Pennycook's decision to direct the authority to progress its local plan.

Basildon's Cabinet later considered legal advice on 15 October and agreed a strategy for challenging the ministerial directions concerning the deadline for submitting the plan.

The Cabinet also authorised the council's leader, Andy Barnes, to initiate judicial review proceedings if advised to do so.

The council subsequently asked Pennycook for more time to submit its plan for examination, citing concerns raised by Essex County Council over the adequacy of the infrastructure needed to support the proposed development.

In correspondence dated 26 October, Pennycook confirmed that the request for an extension remained under consideration, but warned that any attempt to withdraw the plan in defiance of his existing directions would be unlawful.

The council has now voted through a motion that says the council resolves to “withdraw the current Local Plan from further progression beyond the Regulation 19 stage, subject to all necessary procedural requirements if the forthcoming judicial review is not successful, as a last resort”.

According to a spokesperson for the council, the legal challenge will be launched against the Secretary of State, “and the challenge would be against any unreasonable refusal to extend the deadline for submission of the Local Plan in the light of the necessary further consideration arising from the statutory consultee responses to the Reg 19 process”.

The spokesperson added: “Confidential legal advice was shared with the Cabinet at its meetings on 15 October, when the opposition group leaders present had both the opportunity to read the advice and to ask the KC questions within the confines of the legally privileged meeting. 

“Further, at the Extraordinary Meeting held on 16 October the Monitoring Officer was asked to provide further legal advice, which he did.

“The Council is confident in the legal advice received and that it has acted lawfully in relation to this matter.”

The dispute within the local authority centres on the number of new homes to be built in the borough. The draft local plan includes allocation for 29,000 homes, but this week’s motion argues that the region lacks the infrastructure needed to accommodate this level of development.

It also raises concerns about the prospect of building on Green Belt land to meet the target.

The Labour Group withdrew from the chamber during the meeting, refusing to vote on the motion. Two independent members also left after claiming the motion had been "rushed".

Speaking on Monday, Basildon’s Mayor, Cllr Sam Journet, said the motion prioritises the judicial review challenge but leaves the council with the option to “push the nuclear button” and withdraw the draft local plan from further progression “subject to the required procedural steps”.

He added: “If the legal challenge does not stop the plan, we should not simply carry on as if those concerns have disappeared. We should cease participating in the current plan-making process and begin considering an alternative based on infrastructure that can be shown to be deliverable.”

The decision to pursue a challenge drew criticism from Basildon's Labour councillors during the meeting, with the group's leader, Cllr Gavin Callaghan, describing the move as "the height of irresponsibility".

Responding to questions about the legality of the motion, Basildon's monitoring officer, Mark Greenburgh, said it did not breach any of the council's rules governing motions.

He added: "I completely agree with the proposition that if the council were to either withdraw from the plan preparation or to withdraw the plan itself that would as it's presently cast be directly contrary to directions issued by the minister of state to the council and I would not countenance that and would give advice that the council would be acting unlawfully if it did so.

"There's nothing in this motion itself which is unlawful."

Basildon's leader, Cllr Andy Barnes (Conservative), meanwhile stressed that the amended motion would not result in the immediate withdrawal of the local plan and insisted it was "within the law".

He told members that the council was still some way from reaching the point at which withdrawal would become an option.

He added: "The fact of the matter is that this has been checked. We've got the legal advice and we are comfortable that what this motion proposes is within the law."

Cllr Callaghan has since written an open letter to Basildon's chief executive calling for an investigation into the circumstances surrounding the motion.

The row over the local plan comes amid a Government investigation that was launched in July over "serious cultural and governance" concerns at the local authority. Ministers set a deadline of 30 October for the non-statutory review to be complete.

A Ministry of Housing, Communities and Local Government spokesperson said: "Basildon must play their part in building the homes we need, and we will not hesitate to step in if councils are not getting on with the job to have an up-to-date plan in place. 

"We have instructed Basildon Borough Council to progress their draft local plan at pace, ensuring they remain on track to submit for examination by the end of this year."

Adam Carey