IM Properties Development Ltd v Lichfield District Council

 [2014] EWHC 2440 (Admin) [2014] PLSCS 220Development plan documentJurisdictionIM Properties Development Ltd v Lichfield District CouncilAdministrative CourtPatterson J18 July 2014Development plan – Planning policy – Planning and Compulsory Purchase Act 2004 – Defendant local authority refusing claimant’s application for planning permission – Claimant applying for planning permission outside green belt – Defendants submitting draft local plan strategy to secretary of state – Planning inspector rejecting claimant’s proposed development as alternative to and requiring amendments to draft strategy – Defendant submitting modifications using green belt land – Claimant seeking judicial review of endorsement of modifications – Whether court having jurisdiction to determine claim – Application dismissed The claimant developer applied for judicial review seeking an order quashing a decision by the defendant local authority to endorse the main modifications to the draft Lichfield Local Plan Strategy. The main modifications endorsed by the defendants included proposals to release two areas of land from the green belt both of which were of interest to other developers (the interested parties). Both sites lay to the south of Lichfield and were close to the urban area.Throughout the local plan process the claimant had been interested in, and had promoted, a new village concept on land to the North East of Lichfield. It had submitted a planning application for up to 750 dwellings, primary school, care village, local neighbourhood facilities to facilitate retail development, community building, parking, comprehensive green infrastructure and landscaping, new access points and improvements to local roads. That application was refused by the defendants for seven reasons, including one that referred to the site being outside the settlement boundaries and not being allocated in the emerging local plan strategy. One of the sites was not within the green belt.The defendants and the interested parties raised a fundamental and prior issue whether the court had jurisdiction to determine the claim at all by reason of the wording of section 113(2) of the Planning and Compulsory Purchase Act 2004 which provided that, subject to certain exceptions, a development plan document was not to be questioned in any legal proceedings. Held: The appeal was dismissed.The decision in question related to main modifications which had been endorsed by the defendant within a local plan process approaching its end. Therefore, one was not dealing with an early claim for judicial review testing the lawfulness of decision taking in the run up to a statutory process but with a claim for judicial review taken during the statutory process which, far from saving time and expense, could add time and expense to the process which was underway. Although the present claim did not seek to question a relevant document of the kind to which section 113 of the 2004 Act specifically referred, it was not that simple. The claimant was seeking was a quashing order of main modifications. If successful such a claim would abort the current plan making process when it was at an advanced stage. That would lead to considerable delay and expense not only to those parties before the court but to others who had made representations on the modifications which would be considered in due course by the inspector at the resumed examination. The effect of a successful challenge would be to start that process again. It was precisely because of the potential chaos that could be caused by a successful challenge at this stage in the plan making process that Parliament had inserted the ouster in the statutory provision.Once a document became a development plan document (DPD) within the meaning of section 113, the statutory language was clear: it was not to be questioned in any legal proceedings except in so far as was provided by the other provisions of the section. Section 113(11)(c) made it clear that for the purposes of a DPD or a revision of it the date when it was adopted by the local planning authority was the relevant date from when time ran within which to bring a statutory challenge. It was quite clear that, once a document had been submitted for examination it was a DPD. The main modifications which had been proposed and which would be the subject of examination were potentially part of that relevant document. To permit any other interpretation would be to give a licence to satellite litigation at an advanced stage of the development plan process: R v Cornwall County Council, ex parte Huntington [1994] 1 All ER 694, First Corporate Shipping v North Somerset Council [2001] EWCA Civ 693 and Manydown Co Ltd v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin); [2012] PLSCS 86 considered.Further, the inspector in the present case had found the preferred option for development relied upon by the defendants, namely, town focussed development, to be sound. The new village option was considered by the inspector and rejected by him. Yet, that was what the claimant wished to resuscitate and sought to do so by its claim for judicial review. To permit that approach to plan making was inimical to the statutory scheme. Accordingly, the claim was not one that could be lawfully brought by reason of the operation of section 113(2) of the 2004 Act. Anthony Crean QC (instructed by Shoosmiths LLP) appeared for the claimant; Gary Grant (instructed by Democratic, Development and Legal Services) appeared for the defendants; Morag Ellis QC and Hereward Phillpot (instructed by Berwin Leighton Paisner LLP) appeared for the first interested party; Jeremy Cahill QC, Satnam Choongh and James Corbet Butcher (instructed by Squire Patton Boggs (UK) LLP) for the second interested party. Eileen O’Grady, barrister