Local plan – Allocation of employment land – Inspector’s recommendations – Defendant council allocating site without prior feasibility study recommended by inspector – Further allocated site expanded after inquiry to include area of housing – Whether adoption of plan unlawful – Whether substantial prejudice to claimant – Claim dismissed
The claimant was a developer of industrial and commercial property. It held an option over a greenfield site in Burnley, which it wished to develop for such purposes. Burnley fell within a regeneration priority area in the Lancashire joint structure plan, which contained a requirement to increase the total employment land allocation in Burnley. The defendant council’s subsequent deposit local plan identified land to be allocated for employment uses, including sites at Hepworth and Stoneyholme. However, did not so allocate the claimant’s option land. The claimant lodged objections to the plan, which were considered with others at a public inquiry before an inspector.
In his report, the inspector agreed with the allocation of the Stoneyholme site but noted that it was doubtful whether the Hepworth site would be available for development within the plan period. He recommended a feasibility study into the latter site prior to its allocation as employment land.
In their responses, the defendants indicated that they accepted the inspector’s recommendations save in respect of the Hepworth site, which they decided to allocate for employment use without a prior feasibility study. The defendants also expanded the allocation at Stoneyholme to include an area of housing. The plan was adopted in April 2006.
The claimant brought proceedings to quash the employment land chapter of the local plan pursuant to section 287 of the Town and Country Planning Act 1990. It contended that: (i) the Hepworth site should not have been retained in the plan without a prior feasibility study; and (ii) the expanded Stoneyholme site should not have been allocated without an inquiry. Regarding the first ground, the defendants filed a statement that a feasibility study would have delayed the adoption of the entire plan by nine to 12 months.
Held: The claim was dismissed.
Although the defendants had given no reason in their response document for departing from the inspector’s recommendation for a feasibility study into the Hepworth site, their statement indicated their principal reason, which was that a prior feasibility study would have delayed the adoption of the plan by nine to 12 months. The court should proceed on the basis of that evidence, which had not been challenged in the claimant’s evidence or submissions, and did not constitute an ex post facto rationalisation: R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 distinguished. The defendants had not been bound by the inspector’s recommendation and they had not failed to give them due consideration. The reason for departing from them had been entirely rational; the defendants considered that the undesirability of delaying the entire plan outweighed the desirability of a feasibility study to ascertain whether the allocation of the Hepworth site was realistic. They had not exceeded their powers.
Although the defendants’ failure to mention the issue of delay point in their responses to the inspector’s recommendations amounted to a failure to comply with their duty under regulation 27 of the Town and Country Planning (Development Plan)(England) Regulations 1999, the claimant had not suffered any substantial prejudice given that: (i) delay was a rational basis for departing from the relevant recommendation; (ii) the claimant had no direct interest in the Hepworth site; and (iii) the claimant’s own site had not found favour with either the defendants or the inspector.
Regarding the Stoneyholme site, the claimant had no direct interest in that site or any neighbouring land and had not challenged its allocation at the inquiry or any earlier stage. The inclusion of an area of housing after the inquiry following local consultation, even if regarded as a shortcut, did not substantially prejudice the claimant.
Ian Ponter (instructed by Halliwells LLP, of Manchester) appeared for the claimant; John Hobson QC (instructed by the legal department of Burnley Borough Council) appeared for the defendants.
Sally Dobson, barrister
