Town and country planning – Development plan document – Validity – Defendant local planning authority deciding to agree and submit draft local plan for independent examination – Claimant applying for judicial review – Whether judicial review claim excluded by section 113(2) of Planning and Compulsory Purchase Act 2004 – Whether failure to comply with procedural requirements making defendant’s decision unlawful – Application dismissed
The claimant was a development company which wished to develop approximately 133 homes on a site owned and promoted by the claimant known as “Land East of Central Line/North of Abridge Road (including The Old Foresters’ Site), Theydon Bois”. The defendant was the local planning authority for the area in which the site was situated. The defendant took the decision to agree and publish the Draft Epping Forest District Local Plan (Submission Version 2017) in accordance with regulation 19 of Part 6 of the Town and Country Planning (Local Planning) (England) Regulations 2012 (as amended) and thereafter to submit it to the secretary of state for independent examination under section 20 of Part 2 of the Planning and Compulsory Purchase Act 2004. Although the claimant’s site was allocated for residential development in the draft local plan for consultation in October 2016, it was excluded from the 2017 Draft Local Plan.
The claimant applied for judicial review of the defendant’s decision. The claimant contended, among other things, that the defendant had failed before coming to its decision to make proposed submission documents available as required by regulation 19 of the 2012 Regulations. The defendant contended that the claim for judicial review was excluded from the court’s jurisdiction by the ouster provision in section 113 of the 2004 Act.
Held: The application was dismissed.
(1)(1) The scope of an ouster provision such as that in section 113(2) of the 2004 Act had to be determined according to its own terms and the particular statutory context.Section 37(3) provided that a development plan document was a local development document which was specified as a development plan document in the local development scheme. Section 17(8)(a) provided that “a document is a local development document only in so far as it or a part of it… is adopted by resolution of the local planning authority as a local development document”. Accordingly, only a challenge to an adopted local plan was precluded by section 113(2) otherwise than by a challenge made under the provisions of section 113. The clear words of the relevant statutory provisions led to that conclusion. Section 113(7B) and (10) reinforced that analysis. Further, the claimant was challenging the steps taken, or not taken, by way of preparation for submission of the local plan which was not a challenge to the development plan document or local plan itself. Accordingly, the proceedings were not ousted by section 113(2): The Manydown Company Ltd v Basingstoke and Deane Borough Council[2012] EWHC 977 (Admin); [2012] PLSCS 86 and IM Properties Development Ltd vLichfield District Council[2014] EWHC 2440 (Admin); [2014] PLSCS 220 considered.
(2) The documentation before the defendant at the time it took the decision contained sufficient evidence to come to a conclusion whether or not the draft plan was sound and ready to be submitted for independent examination. Whether or not it was reasonable for the defendant to reach that conclusion was a matter for the inspector to consider. The absence of access to certain documents did not make it impossible for the claimant or any interested parties or members of the public to have any understanding as to why the defendant concluded that certain sites should be included in the draft plan and others not; nor did it cause any prejudice to the claimant. The defendant’s reasons for not allocating the claimant’s site were explained, albeit briefly but adequately, and there was a non-technical summary of the sustainability appraisal published on the defendant’s website, Moreover, the claimant (and others) had not been excluded from full participation in the consultation process. The claimant had made representations under regulation 20 of the 2012 Regulations and had therefore, pursuant to section 20(6) of the 2004 Act, secured a right to be heard by the inspector appointed to carry out the examination of the draft plan in due course. Compliance with section 19(3) of the 2004 Act was a matter for the judgment of the inspector. Regulations 19 and 20 were relevant to the examination stage of plan-making. Regulation 19 publication was not a consultation exercise. It was the mechanism by which interested persons were provided with an opportunity to make representations on the draft plan under regulation 20 to enable them to participate in the process of independent examination. In the present case the claimant had made regulation 20 representations, challenging the soundness and legal compliance of the draft plan that would be considered by the inspector appointed to examine the local plan. Moreover, following the grant of permission to proceed with the claim, the defendant had written to certain interested persons who had raised the absence of access to the proposed submission document, giving them an opportunity to supplement those representations. While it was a matter for the inspector to decide whether it was appropriate to take those additional representations into account, or allow interested persons the opportunity to make additional written representations during the examination process, there was no real likelihood of him refusing to take such representations into account.
Christopher Lockhart-Mummery QC (instructed by Howes Percival LLP, of Northampton) appeared for the claimant; Mark Beard (instructed by Epping Forest District Council) appeared for the defendant.
Eileen O’Grady, barrister
