Fri, 25 Jul 2014
Jerry Cahill QC, Satnam Choongh and James Corbet Burcher
R (on the application of IM Properties) v Lichfield District Council  EWHC 2136 (Admin)
Mrs Justice Patterson (Planning Court, sitting in Birmingham) handed down judgement in R(IM Properties) v Lichfield District Council on 18 July 2014.
Jerry Cahill QC, Satnam Choongh and James Corbet Burcher acted for the 2nd Interested Party, Persimmon Homes Ltd.
The Lichfield District Local Plan: Strategy was submitted for examination in March 2013. In 3 September 2013, following hearings in June-July 2013, the Examining Inspector, Robert Yuille MSc DipTP MRTPI, recommended Main Modifications to find a site or sites for an additional 900 houses.
Following extensive further Sustainability Appraisal and Green Belt assessment work, the Council recommended Main Modifications requiring the release from the Green Belt of two sites to the south of the city of Lichfield, owned by Taylor Wimpey (UK) Ltd and Persimmon Homes Ltd respectively. Following decisions of the Economic and Development (Overview and Scrutiny) Committee and Cabinet, the Defendant’s Full Council voted to approve the proposed Main Modifications on 28 January 2014.
The Claimant, the promoter of a site to the north of Lichfield, challenged that decision by judicial review in March 2014. The grounds included: (1) Misunderstanding of the approach to revisions to the Green Belt as a matter of law; (2) Unfair process in dealing with the Claimant’s land; (3) Predetermination.
In defence to the claim, the Defendant Council and both Interested Parties submitted that the challenge was jurisdictionally barred by section 113(2) of the Planning and Compulsory Purchase Act 2004. The Claimant, in turn, sought to rely upon The Manydown Company Limited v Basingstoke and Deane Borough Council  EWHC 977.
Dealing with the question of jurisdiction first, Patterson J distinguished Manydown:
“69. The factual situation in Manydown was entirely different to that in Lichfield. What was of concern there were the contents of a pre submission draft of a core strategy. …
70. Here, the decision relates to main modifications which have been endorsed by the defendant within a local plan process approaching its end. One is not dealing, therefore, with an early claim for judicial review testing the lawfulness of decision taking in the run up to a statutory process but with a claim for judicial review taken during the statutory process which, far from saving time and expense could add time and expense to the process which is currently underway. …
71. Once a document becomes a Development Plan document within the meaning of section 113 of the 2004 Act the statutory language is clear : it must not be questioned in any legal proceedings except in so far as is provided by the other provisions of the section. Sub-section (11)(c) makes it clear that for the purposes of a Development Plan document or a revision of it the date when it is adopted by the Local Planning Authority is the relevant date from when time runs within which the bring a statutory challenge.
72. It is quite clear, in my judgment and not inconsistent with the Manydown judgment, that once a document has been submitted for examination it is a Development Plan document. The main modifications which have been proposed and which will be the subject of examination are potentially part of that relevant document. To permit any other interpretation would be to give a licence to satellite litigation at an advanced stage of the Development Plan process.”
The judge further observed:
“114.The fact of the pending further examination is the answer to the claimant's complaints. The claimant will have ample opportunity at that hearing to raise all of these issues, if it thinks it is appropriate to do so, and to have the inspector's findings upon them. I do not find that there has been any lack of fairness in the process thus far which seems to me to have been carried out in a thorough manner on the part of the defendant. However, the claimant is not deprived of any opportunity to make representations on the main modifications as the examination process is ongoing. In truth, the claimant has an alternative remedy for its complaints.”
The judgment therefore makes clear that prospective Claimants cannot challenge decisions on Main Modifications until after adoption, especially where the grounds allege a failure to have regard to matters of policy or other new events which can be dealt with by the Examiner in his report.
Patterson J nevertheless went on to determine the other Grounds for the sake of completeness and held:
(a) an e-mail from a Councillor to all Members of the main political grouping in advanced of the Full Council decision did not give rise to any predetermination of the Full Council’s decision, -;
(b) the Members fully understood the relevant national planning policy on the release of land from the Green Belt contained with NPPF. Neither Copas v Royal Borough of Windsor and Maidenhead  EWCA Civ 180,  nor Gallagher Homes v Solihull Metropolitan Borough Council  EWHC 1283, - could be said to give rise to the “falsification doctrine” suggested by the Claimant -;
(c) there had been no unfairness in the consideration and presentation of information to Full Council in respect of the Claimant’s land. Further there was no requirement to refer Members to a Ministerial Statement on Green Belt of 17 January 2014 which was primarily directed at individual decision-taking -.
Permission to appeal has now been refused at first instance, with a partial award of costs to the Interested Parties.
The Lichfield Local Plan Strategy Examination can now continue later this year.