Challenging Plans Before They Are Hatched

Can you challenge a draft local plan in the High Court before it is submitted to the Secretary of State for examination? When does the ouster in section 113 of the Planning and Compulsory Purchase Act 2004 kick in, which prevents development plan documents from being “questioned in any legal proceedings” except by way of an application for leave made before the end of six weeks beginning with the date that the document is adopted by the local planning authority?

These ouster provisions in legislation cause problems. For instance, in my 4 February 2017 blog post Hillingdon JR: Lucky Strike Out?, I reported on a case where the equivalent provision in relation to challenges to national policy statements under the NSIPs regime was relied upon to strike out a challenge to the Government’s announcement of a decision to publish a draft airports NPS.

R (CK Properties (Theydon Bois) Limited) v Epping Forest District Council (Supperstone J, 29 June 2018) concerned a challenge by a developer to Epping Forest District Council’s decision on 14 December 2017 to proceed with regulation 19 consultation of the submission version of its draft local plan prior to its submission to the Secretary of State for examination.

For those not familiar with the process, in summary authorities first have to carry out consultation in relation to their proposed development plans under Regulation 18 of the Town and Country Planning (Local Planning) (England) Regulations 2012 and take that consultation into account in preparing a revised version either for further Regulation 18 consultation or, if they consider that the document is ready for examination, for submission to the Secretary of State – in which case they must then carry out further consultation, under Regulation 19, before submitting the plan along with the representations received in response to that further consultation.

Remember back when many local planning authorities were racing to submit their local plans before a deadline of 31 March 2018, when the Government was indicating that its proposed standardised methodology for assessing housing needs would need to be used for plans submitted after that date? Of course that date then slipped with the delays to the draft revised NPPF to a date which will now be six months after the new NPPF is published but that’s another story.

Epping Forest was one of those authorities rushing to submit its plan, a district where the new standardised methodology would apparently increase the required housing provision over the plan period from some 11,400 to 20,306 homes. Some difference.

CK Properties have a site which was not allocated for residential development. Its complaint in the legal proceedings was that the appendix to the council’s site selection report that assessed the various sites considered for allocation and explaining its reasoning was not available at the time the council made its decision to consult on the submission version of its plan, despite assurances in its statement of community involvement that such background documents would be made available. The claimant secured an order from the Planning Court on 20 March 2018 restraining the council from submitting the plan for examination until the claim had been determined.

At the full hearing, the council sought to argue that regardless of the position in relation to the matters complained of, the effect of section 113 was that any challenge would have to await adoption of the plan.

It’s an important issue – can those aggrieved by a decision by a local planning authority to submit its plan to the Secretary of State for examination, challenge that decision by way of judicial review or do they have to store up their complaint until the plan is finally adopted?

The High Court had previously considered a challenge to a decision taken at an earlier stage in the development plan process in The Manydown Company Limited v Basingstoke and Deane Borough Council (Lindblom J, 17 April 2012), allowing judicial review proceedings to be brought of a decision by a council to approve a pre-submission draft core strategy for consultation (the equivalent of what is now the regulation 18 stage under the 2012 Regulations). The judge postulated that the position might be different in relation to the submission draft of a plan but considered that section 113 did not preclude challenges to pre-submission drafts.

Indeed the judge saw good sense not closing out the potential for an early challenge:

In a case such as this, an early and prompt claim for judicial review makes it possible to test the lawfulness of decisions taken in the run-up to a statutory process, saving much time and expense – including the expense of public money – that might otherwise be wasted. In principle it cannot be wrong to tackle errors that are properly amenable to judicial review, when otherwise they would have to await the adoption of the plan before the court can put them right.”

The High Court had also considered in IM Properties Development Limited v Lichfield District Council (Patterson J, 18 July 2014) the different question as to whether judicial review proceedings could be brought in relation to main modifications to a local plan or whether the challenge could only be brought post plan adoption by way of section 113. The court determined that the latter position was correct:

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.

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.”

Having considered the scope of section 113 and these two previous authorities (neither covering the situation of an authority’s decision to proceed with a submission draft plan), Supperstone J concluded that the authority’s decision to prepare for submission of the plan could indeed be challenged by way of judicial review and was not closed out by section 113.

Whilst the claim ultimately failed because the judge did not find any of the grounds of challenge to be made out, the potential implications of the ruling are significant. There is very clearly now a window for judicial review of a local planning authority’s decision to embark on regulation 19 consultation (the formal precursor to submission of the plan for examination). The window closes when the plan is submitted for examination and any subsequent challenge can only be brought once the plan has been adopted. If there are clear grounds for challenge (for instance on the basis of procedural failings in the process to that date) why wait for submission of the plan and its eventual adoption? Indeed, might claimants challenging an adopted plan be criticised and even denied relief if they could have brought proceedings at the earlier stage?

Whilst there is something to be said for the Lindblom LJ (as he now is) view, expressed in Manydown, that early challenge (rather than having potential challenges stored up) can be a good thing, it can surely also be a bad thing if it slows down the process, particularly if, as is so often the case, the challenge is ultimately dismissed.

I assume that one reason why the claimant brought the early challenge in Epping Forest, and secured the interim order obtained from the court preventing submission of the plan until the full hearing had taken place into the challenge, was to seek to ensure that the plan was not submitted until the deadline had passed after which the Government’s standardised methodology for assessing housing needs had been introduced – given that the new methodology would require additional housing sites to be found. However, such have been the delays with the introduction of that methodology and such has been the speed of the court process to date (I do not know whether permission to appeal is being sought) it is very likely that the council will still be in a position to submit its plan on the basis of the old methodology.

Simon Ricketts, 30 June 2018

Personal views, et cetera

Author: simonicity

Partner at boutique planning firm, Town Legal LLP, but this blog represents my personal views only.

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