Mon, 20 Jul 2015
The Planning Court (Mr Justice Cranston) handed down judgment in IM Properties Ltd v Lichfield District Council  2077 (Admin) on Monday 20 July 2015.
The judgment will be of interest to all those involved in local plan examination and the case has been closely followed in the Birmingham/West Midlands region.
Litigation began in March 2014, when the Claimant, IM Properties Ltd, brought a challenge by way of judicial review to the decision of Lichfield District Council to approve Main Modifications to the Lichfield District Local Plan. Those Main Modifications were made in response to interim findings by Inspector Robert Yuille that the Council needed to allocate further land for housing within the Local Plan. The Council proposed the allocation and removal from the Green Belt of two separate sites to the south of Lichfield promoted respectively by the First Interested Party, Taylor Wimpey (UK) Ltd, and the Second Interested Party, Persimmon Homes Ltd.
In the first judgment, IM Properties Ltd v Lichfield District Council  EWHC 2440 (Admin) (henceforth IM Properties (No. 1)), Mrs Justice Patterson held that the Claimant’s challenge was subject to the jurisdictional ouster in section 113(2) of the Planning and Compulsory Purchase Act 2004. The judge still went on to provide a fully reasoned decision as to why the claim would have been dismissed in any event. Permission was then refused on the papers by Sullivan LJ.
The Local Plan examination re-commenced before Inspector Yuille in October 2014. Satnam Choongh and James Corbet Burcher appeared for Persimmon, alongside several other Planning Counsel for various parties. The Inspector recommended the Plan be adopted with the Main Modifications in January 2015.
The Claimant then sought to challenge that adoption by way of a section 113 PCPA challenge. At the same time, it applied for an interim injunction to suspend the plan. Following various interim stages, a full-day hearing was held before Mr Justice Holgate solely in respect of the injunction:  EWHC 1982 (Admin) (22 April 2015). The judgedismissed the application, also awarding the Interested Parties their costs.
The section 113 challenge was brought on a number of separate grounds, covering the following matters:
(1) The Inspector’s description of his own role in respect of assessment of legal compliance;
(2) Three separate sub-grounds relating to Strategic Environmental Assessment, including the procedural fairness of an information deadline, the adequacy of the Sustainability Appraisal and the adherence to the consultation requirements;
(3) The Inspector’s application of the “exceptional circumstances” test for the removal of land from the Green Belt;
(4) The extent of changes that were capable of comprising Main Modifications.
Mr Justice Cranston held that:
(1) The Inspector had fully complied with the statutory duty under s20(5) PCPA and had carefully considered the competing legal submissions on SEA, reading the Report fairly and in full;
(2)(a) The information cut-off in respect of site information for the purposes of the Sustainability Appraisal was not unfair (consistent with Patterson J’s “highly persuasive” finding in respect of a similar ground in IM Properties (No. 1)). The so-called “guillotine” had not, in any event, prevented the Claimant from making submissions to the Inspector on updated material;
(2)(b) The Sustainability Appraisal had taken into account “current knowledge”, including by reference to the “as may be reasonably required” wording within regulation 12(3) of the SEA Regulations;
(2)(c) There had been no breach of regulation 13 of the SEA Regulations in respect of consultation; during the February-March 2014 consultation on the Main Modifications, the Claimant had been able to make representations on the Sustainability Appraisal, as had a number of others;
(3) The Claimant’s ground in respect of Green Belt “[flew] in the face of how the planning inspector approached his task”; the Inspector had been well aware of, and correctly applied the “exceptional circumstances” test;
(4) There is no statutory restriction on the scale and scope of what may constitute a Main Modification to a Plan, on the face of section 20(7) PCPA; the nature and extent of the modifications were a matter of judgment for the planning inspector and he exercised his discretion lawfully in this instance.
Jerry Cahill QC, Satnam Choongh and James Corbet Burcher appeared in the High Court for the Second Interested Party, Persimmon Homes (instructed by Squire Sanders Boggs (UK) LLP) in IM Properties (No. 1)  EWHC 2440 (Admin).
James Corbet Burcher appeared for Persimmon in the interim hearing:  EWHC 1982
Satnam Choongh and James Corbet Burcher appeared in IM Properties (No. 2)  EWHC 2077 (Admin)