Town and country planning – Local plan – Adoption – Section 113 of Planning and Compulsory Purchase Act 2004 – Respondents challenging policy in adopted local plan – Court holding that policy incompatible with clear reasoning of inspector in examination report and ordering remission with direction to delete certain words from relevant policy – Whether court exceeding jurisdiction under section 113 – Whether impermissibly substituting own planning judgment for that of inspector – Appeal dismissed
The respondents had an interest in a site to the east of Bicester town centre which was allocated for a development of 300 dwellings in the local plan adopted by the local planning authority in July 2015. The adoption of the plan followed the recommendation of the secretary of state’s planning inspector, who had conducted an examination into the plan at which the appellant had appeared as an objector. An issue during the examination had been whether the respondent should be permitted to build on a part of their site which fell within a conservation target area (CTA). In the plan as adopted, the policy dealing with the allocation of the respondents’ site, policy Bicester 13, was modified in accordance with the inspector’s recommendation to provide that the part of the site within the CTA “should be kept free from built development”.
The respondent brought proceedings under section 113 of the Planning and Compulsory Purchase Act 2004 to challenge policy Bicester 13 as adopted. The judge noted that the inspector, in his report, had rejected the argument that the developable area should be reduced to avoid any development in the whole of the CTA. She found that his report contained no reasoning to explain or justify the retention of the wording preventing built development in the CTA, and concluded that the recommendation to adopt the policy in those terms was irrational.
The judge held that, where the issues concerning the location of development within the respondents’ site had been fully ventilated as part of the examination process, it was not necessary for the policy to be reconsidered at a further examination. She accordingly ordered that policy Bicester 13 be treated as not adopted and that it be remitted to the secretary of state for the appointment of a planning inspector to recommend adoption of the policy with the words precluding built development in the CTA deleted: see JJ Gallagher Ltd v Cherwell District Council [2016] EWHC 290 (Admin); [2016] PLSCS 54.
The appellant appealed. She contended that the judge’s order went beyond the scope of the remedies available under section 113 of the 2004 Act since, in ordering the revision of the policy wording without remitting the matter for re-examination, the judge had exercised a planning judgement which could only properly be exercised by the relevant decision-maker. The local planning authority and the secretary of state were both interested parties on the appeal.
Held: The appeal was dismissed.
(1) Where the court quashed a “relevant document” and remitted it under section 113 of the 2004 Act, it could give directions ordering a range of different actions to be taken in relation to the document, with those powers exercisable in relation to the document either in whole or in part: see section 113 (7)(b) and section 113(7A), (7B) and (7C). Those provisions avoided the consequence, when a relevant document was quashed, of its preparation having to begin again even if the error of law had occurred at a relatively late stage in the process. The court’s powers to grant appropriate relief under section 113(7), (7A), (7B) and (7C) were widely drawn and afforded the court an ample range of remedies to overcome unlawfulness in the various circumstances in which it might occur in a plan-making process. They introduced greater flexibility in the remedies that the court could fashion to deal with unlawfulness, having regard to the stage of the process at which it had arisen, and avoiding uncertainty, expense and delay where possible: University of Bristol v North Somerset Council [2013] EWHC 231 (Admin) considered.
(2) The court’s broad power to give directions and, in particular, its power under section 113(7B)(c) and (d) to direct the taking of “action”, extended to giving directions such as the judge had given in the particular circumstances of the case. The relevant “action” could include action to be taken by the inspector in recommending modifications to the plan under section 20(7C), or by the authority in adopting the plan with such modifications under section 23(3). Both were functions relating to the preparation and adoption of the plan within the meaning of section 113(7B)(c).
(3) The provisions of section 113 as to the giving of directions did not warrant the substitution by the court of its own view as to the issues of substance in a plan-making process, or as to the substantive content of the plan. They did not allow the court to cross the firm boundary separating its proper function in adjudicating on statutory challenges and claims for judicial review in the planning field from the proper exercise of planning judgment by the decision-maker. However, that was not what the court had done in the instant case.
The power to give directions enabled the court to fit the relief that it granted precisely to the particular error of law, in the particular circumstances in which that had occurred. The power could be used to require the “person or body” in question to correct some obvious mistake or omission made in the course of the plan-making process, perhaps at a very late stage in the process, without upsetting the whole process by requiring its earlier stages to be gone through again. There was no reason why that power should not be used, in an appropriate case, to give proper effect to a planning judgment already exercised by the person or body concerned or to ensure that a decision taken by that person or body in consequence of such an exercise of planning judgment was properly reflected in the outcome of the process. Used in that way, the court’s power to give directions could overcome deficiencies in the process without trespassing into the realm of planning judgment and without arrogating to itself the functions either of the inspector who had conducted the examination of a local plan or of the local planning authority in preparing and adopting the plan.
(4) Accordingly, there would be cases where the court could give directions requiring an inspector to recommend a modification in a particular form to reflect the conclusions in his report, and also cases where the court could properly give a direction under section 113(7A) requiring a local planning authority to adopt a local plan with a particular modification or modifications. Whether a direction of either kind was appropriate in a particular case would always depend on the individual circumstances of that case. It would be appropriate only if the relevant planning judgment had already been lawfully exercised within the plan-making process itself, and the relevant consequences of that planning judgment were plain, such that the effect of the direction was simply to rectify an error of law and result in the inspector’s or the local planning authority’s planning judgment being given its true and intended effect.
(5) In the circumstances of the instant case, the judge had been entitled to give the directions she had without exceeding the court’s jurisdiction under section 113. She had not engaged in an exercise of planning judgment. She had identified the relevant reasoning of the inspector and correctly analysed its meaning. She had recognised that the relevant planning issues had been thoroughly aired before the inspector at the examination hearing and that he had heard detailed representations on the appropriate extent of development within the allocated site. It was clear from the inspector’s report that he saw no justification for retaining the provision in policy Bicester 13 which referred to keeping the part of the allocated site within the CTA free of build development and that he saw that provision as working against the contribution that the site should be making to the supply of housing. The relevant reasoning in the inspector’s report was complete and clear, and pointed to the conclusion that the sentence in policy Bicester 13 precluding “built development” in the CTA should be removed. The inclusion of that sentence was incompatible with the inspector’s relevant conclusions and its deletion was therefore necessary.
(6) There was no force in the point that the inspector might, on reconsideration, now recommend the alteration of policy Bicester 13 by reducing the number of dwellings in the allocation, or that he might recommend its adoption with a provision precluding “built development” but not other forms of development in the CTA. His report contained no support for that submission. Having had all of the planning issues ventilated before him at the examination hearing, and having dealt comprehensively with them in his report, he had firmly endorsed the allocation of 300 dwellings on the site and, in doing so, had rejected attempts to have some limit imposed in policy Bicester 13 on development within the CTA as a whole.
(7) The judge’s order did not undermine the provisions for public participation in development plan-making under domestic, European Union and international law. The appellant was unable to point to any domestic law provisions relating to public participation which had not been complied with. The examination did not need to be rerun or the examination hearing reopened. The only errors of law lay in the failure by the inspector to translate his conclusions on one aspect of one policy into the recommendation following from those conclusions, and in the consequent failure of the council to adopt the policy in its proper form. Relief less focused on those errors of law than the order made by the judge would be needlessly wasteful of time and cost and would be disproportionate. Further, since other policies in the local plan would operate to prevent development which would have any significant environmental effect on the CTA, there was no breach of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes, of the Environmental Assessment of Plans and Programmes Regulations 2004 or of articles 6(4) and 7 of the Aarhus Convention.
Richard Turney (instructed by Leigh Day) appeared for the appellant; Satnam Choongh (instructed by Pinsent Masons LLP) appeared for the respondents; Richard Kimblin QC (instructed by the Government Legal Department) appeared for the second interested party; the first interested party did not appeal and was not represented.
Sally Dobson, barrister
Read a transcript of Woodfield v JJ Gallagher Ltd and others here