Town and country planning – Local plan – Development plan document – Defendant local authority preparing draft local plan recommending removal of claimant’s land from green belt – Examining inspector modifying draft concluding removal from green belt not justified – Plan adopted in modified form – Claimant applying for judicial review of defendant’s decision to alter adopted policies map to show land within green belt – Whether defendant entitled to correct map – Whether defendant obliged to follow statutory procedure – Whether defendant in breach of legitimate expectation with regard to correction – Claim dismissed
The claimant was a chartered town planner and partner in a planning consultancy. He and his wife were the freehold owners of a parcel of undeveloped land to the rear of their home and other residential properties in North Hinksey Village, Oxfordshire which formed part of a larger area of disputed land.
Prior to the adoption of Local Plan 2031 in December 2016, the disputed land was within a designated area of green belt. Part 1 of the defendant local authority’s draft local plan was a development plan document (DPD) within section 15(2)(aa) of the Planning and Compulsory Purchase Act 2004 and was submitted for examination as required by section 20 of the 2004 Act.
In preparing the draft, the defendant carried out a review of the green belt and proposed that the disputed land should be released from it. Additionally, the defendant proposed the release of four larger parcels of land as strategic site allocations for housing. Those proposals were referred to in the draft core policy 13 (CP13) and the submissions policies map which accompanied it.
The examining inspector concluded that the exceptional circumstances necessary to justify removal from the green belt only existed in respect of the four strategic site allocations. There were no exceptional circumstances justifying removing the disputed land. The defendant subsequently adopted the plan as modified. However, in error, the adopted policies map (APM), which accompanied the local plan, was not updated and continued to show the disputed land as outside the green belt.
The claimant subsequently applied for judicial review of the defendant’s decision to alter its APM to show the claimant’s land as within the green belt. The claimant contended that, under the 2004 Act and the Town and Country Planning (Local Planning) (England) Regulations 2012, the defendant had no power to alter the APM by a simple resolution. It was required to use the statutory procedures for modifying a development plan, which involved public participation and independent scrutiny.
Held: The application was dismissed.
(1) Under the statutory scheme, DPDs were subsets of local development documents (LDDs). Because of their importance, they had to be submitted to the secretary of state for inspection under section 20 of the 2004 Act. However, an LDD did not have to be submitted for inspection, as it was of lesser importance. The APM was an LDD. It was also clear from regulations 5 and 6 of the 2012 Regulations that the APM did not form part of the local plan. Therefore, the inspector did not have power to recommend main modifications to it. However, the defendant might, by virtue of the general powers in sections 23(1), 23(5) and 26(1) of the 2004 Act, lawfully revise the APM outside the process for the adoption of a local plan. That was the course adopted by the defendant and was lawful. Its resolution to do so, outside the time limit prescribed by section 113 of the 2004 Act for a legal challenge to an adopted plan, was not unlawful since section 113(2) only excluded alternative forms of legal challenge and not the lawful exercise of powers by a local planning authority under sections 23 and 26 of the 2004 Act. Furthermore, section 113 applied only to the documents listed in subsection (1), such as DPDs, and not to an APM.
(2) A legitimate expectation might arise from an express promise given on behalf of a public authority, or impliedly from the existence of a regular practice which the claimant could reasonably expect to continue. The critical question was whether there was a sufficient public interest to override the legitimate expectation to which the representations had given rise. The initial burden lay on an applicant to prove the legitimacy of his expectation. In a claim based on a promise, the applicant had to prove the promise and that it was clear and unambiguous and devoid of relevant qualification. If he wished say that he relied on the promise to his detriment, then he had to prove that too. Once those elements had been proved by the applicant, the onus shifted to the authority to justify the frustration of the legitimate expectation. It was for the authority to identify any overriding interest on which it relied to justify the frustration of the expectation. It was then a matter for the court to weigh the requirements of fairness against that interest. If the authority did not place material before the court to justify its frustration of the expectation, it ran the risk of the court concluding that there was no sufficient public interest and its conduct amounted to an abuse of power.
(3) In the present case, the defendant had made clear representations to the inspector regarding the steps that it would take in the local plan part 2 process to delete the correction from the accompanying map. Those representations gave rise to a substantive legitimate expectation on the part of the claimant which was breached when the defendant failed to comply with them. The defendant had re-considered its position and decided on an alternative course, in the lawful exercise of its powers under sections 23 and 26 of the 2004 Act, which were sufficiently wide to allow a correction to the APM where, as a result of an error, the map had been drawn up incorrectly. In the interests of fairness, the claimant was given an opportunity to make written and oral representations to the defendant on the revised proposal. The defendant’s decision to resile from its representations was justified, on the grounds of overriding public interest. The APM was inconsistent with the green belt policy which the defendant had ultimately promoted in the main modifications, in accordance with the inspector’s recommendations, which were binding upon it. Pursuant to principles of good administration, members of the public ought to be able to rely upon the accuracy of published documents which set out important planning policy. In the circumstances, it was proportionate and lawful for the defendant to resile from its representations, and take the necessary steps to correct the mistake in the APM. That had not resulted in unfairness to the claimant; alternatively, any unfairness was outweighed by the overriding public interest.
Michael Bedford QC (instructed by BDB Pitmans LLP) appeared for the claimant; Craig Howell Williams QC and Caroline Daly (instructed by Sharpe Pritchard LLP) appeared for the defendant.
Eileen O’Grady, barrister
