The decision in Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) provides a reminder of the statutory regime for challenging new-style development plans and documents. Section 113 of the Planning and Compulsory Purchase Act 2004 allows a person aggrieved to apply to the High Court for an order either quashing the document or remitting it for reconsideration. (In the latter case, the court can give directions as to the action to be taken in relation to the document.)
The application must be made within six weeks of “the relevant date”. In most cases this will be the date on which the document is adopted by the local planning authority or approved by the secretary of state, as the case may be. On an application, the court may make an interim order suspending the operation of the document wholly or in part. The grounds of challenge are limited to two, namely (1) that the document is not within the appropriate power and (2) a procedural requirement has not been complied with.
It is crucial to note the preclusive nature of the statutory provisions. They render new-style development plans and documents immune from questioning in any proceedings, other than those brought under section 113 within the stated time-limit. The purpose is to provide certainty as to the validity of such plans and documents.
In Shadwell, the claimant as a person aggrieved unsuccessfully challenged the adoption of an area action plan on a number of grounds, one of which was a failure to carry out the required sustainability appraisal and strategic environmental assessment adequately. In that context, the court pointed out that its role was to conduct a review on conventional Wednesbury grounds.
Citing earlier authority on the general approach of the court, the judge stated that it was important to distinguish between (a) deficiencies resulting from the omission of a topic or because it has been inadequately dealt with which may have force on the planning merits and (b) deficiencies that show there has been an error of law or mean that the document cannot reasonably be regarded as an environmental statement. Only the latter was capable of founding a statutory application to quash or remit.
In the present case, the judge concluded that the sustainability appraisal and strategic environmental assessment could properly be described as such.
John Martin
