Defendant local authority preparing proposals for replacement local plan – Proposals providing for housing – Secretary of State issuing revised planning policy guidance on housing – Defendants deciding to withdraw emerging local plan – Claimant developers seeking judicial review – Whether defendants acting unlawfully – Whether no statutory power to withdraw emerging local plan – Claim dismissed
The claimants were members of a consortium that were interested in developing land to the west of the A1(M) motorway for housing. In their structure plan review for the period 1991 to 2011, Hertfordshire County Council had allocated the land, which was green-belt land, for large-scale residential development in order to meet the county’s anticipated housing requirements. The land was partly within the administrative area of the defendant authority, North Hertfordshire District Council (NHDC). Hertfordshire County Council formally notified NHDC that their existing local plan no longer conformed to the structure plan review. Accordingly, NHDC prepared a proposed replacement local plan and placed it on deposit. This made provision for 2,600 dwellings on the land.
In March 2000 the Secretary of State issued a revised version of PPG 3 relating to housing. As a result, NHDC believed that they had to radically reconsider their proposals, and, in particular, there had to be a rigorous search for land for housing on brownfield sites, coupled with an urban housing capacity study to ensure that greenfield sites were used only when suitable brownfield sites were exhausted. In December 2000 NHDC decided to withdraw their draft replacement local plan pursuant to regulation 25(1) of the Town and Country Planning (Development Plan)(England) Regulations 1999. Regulation 25(1) did not permit withdrawal, but dealt only with the manner in which such withdrawal could take place.
The claimants sought judicial review of NHDC’s decision. They contended that there was no power to withdraw a local plan or proposals for the alteration or replacement of such a plan, and that the defendants’ actions were therefore unlawful. In contrast with the express powers contained in the Town and Country Planning Act 1990, as amended, to withdraw structure plans or unitary development plans, there was no such express power to withdraw an emerging local plan. The claimants submitted that there was no ambiguity in the provisions, and the absence of an express power meant that no such power could be inferred. The claimants contended that the power to abandon arose only at the end of the process when the local planning authority could adopt the proposals. If they decided not to adopt, they abandoned the proposals. The claimants submitted that references to abandonment in the earlier regulations supported their contention. Alternatively, the claimants argued that “abandon” and “withdraw” did not have the same meaning, and that proposals that were abandoned could, none the less, be called in by the Secretary of State.
Held: The claim was dismissed.
There was an ambiguity, and it was not possible to say that the existence of the express powers to withdraw proposals relating to structure plans and unitary development plans meant that there could be no similar implied power to withdraw proposals relating to local plans. It would be absurd to require proposals to be put through the statutory procedure, including a public inquiry, which was likely to be costly, when a local planning authority knew in advance that the proposals would not be adopted. Such a situation would only rarely happen, and local authorities should consider abandoning only if satisfied that the proposals could not, even if modified, be adopted. The existence of the power was necessary to prevent carrying out expensive procedures for no sensible purpose. It seemed that the draftsman of the 1990 Act, as amended, assumed that the power of abandonment did not need to be expressly conferred. Regulation 25(1) dealt adequately with the consequences of an implied abandonment or withdrawal. Although regulation 25(1) and NHDC’s letter referred to withdrawal, it was immaterial, since the effect of abandonment and withdrawal of proposals was the same.
Robin Purchas QC and Douglas Edwards (instructed by Davies & Partners) appeared for the claimants; Christopher Lockhart-Mummery QC and Timothy Morshead (instructed by the solicitor to North Hertfordshire District Council) appeared for the respondents; David Holgate QC (instructed by the Treasury Solicitor) appeared for the interested party, the Secretary of State for the Environment, Transport and the Regions.
Sarah Addenbrooke, barrister
