In JJ Gallagher Ltd and Others v Cherwell District Council and the Secretary of State for Communities and Local Government [2016] EWHC 290 (Admin), the claimant sought an order under section 113(3) of the Planning and Compulsory Purchase Act 2004 that a site allocation policy be treated as not adopted and be remitted to the council for reconsideration. The court upheld the claim and granted the remedy as a the most appropriate in the circumstances.
The claimant’s land was allocated in part 1 of a recently adopted plan for 300 homes, subject to a restriction on any built development the part within the conservation target area (CTA), which was most of it. The local plan examination inspector’s report had concluded that the restriction on the CTA part of the site would render the delivery of the allocated amount of housing unfeasible (and potentially the contribution to CTA mitigation measures unviable).
The judge held that by sterilising the majority of the site for development, the policy was clearly inconsistent with the local plan inspector’s acceptance of the allocation for 300 homes during the plan’s examination. The policy was inadequate to address that intended outcome. The inspector should have recommended the deletion of the offending part of the policy when making his modifications. The authority had no legal power to modify the plan by deleting the disputed sentence as it would a material change.
The judge rejected the local authority’s suggestion that the policy allowed development in part of the CTA as an entirely artificial approach to a clear policy which did not justify resorting to external documents such as examination transcripts, the inspector’s report or witness statements (applying Phides Estates Overseas Ltd v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin)).
Given that the case was not one in which there had been flaw in the public participation or hearing process, the judge did not accept the authority’s position that the remitted policy should be subject to a new examination in public. The court order would require firstly the policy to be treated as not adopted, secondly for it to be remitted to the secretary of state (for the appointment of the inspector to recommend its adoption) and finally adoption by the authority.
The remedy demonstrates the legal scope to prescribe the process and outcome. Given the court’s conclusion that it would be unlawful to adopt a policy on terms that prevented its intended outcome, the authority’s ability to give effect to its subsequent resolution to use part 2 of the local plan to designate the site as local green space would also now seem in doubt.
Roy Pinnock is a partner in the planning and public law team at Dentons
