Challenge to Development Plan Document too late in process

Under the statutory scheme a Development Plan document (“DPD”) is submitted by a Local Planning Authority when it is of the view that the document is ready for independent examination.

The examination then occurs into the DPD which is under the control of a Planning Inspector throughout. If a Local Planning Authority request an Inspector to do so he must recommend modifications to the DPD to make it sound.

Section 23 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) deals with the question of adoption of local development documents. It provides,

“(2) The authority may adopt a development plan document as originally prepared if the person appointed to carry out the independent examination of the document recommends that the document as originally prepared is adopted.

(3) The authority may adopt a development plan document with modifications if the person appointed to carry out the independent examination of the document recommends the modifications.”

In the Planning Court case of IM Properties Development Ltd v Lichfield District Council & Ors [2014] the Lichfield Local Plan Development Strategy was undergoing the process of examination.

The Inspector had concluded that it would not be sound to adopt the plan as presented to him and so had recommended that modifications be carried out to enable it to meet the statutory requirements.

So, the process of examination was suspended whilst further work was being carried out on the main modifications for the Inspector to examine further when the examination process had resumed.

During the consultation period on the main modifications the claimant and first and second interested parties (both national builders) had all submitted further representations.

The Inspector may or may not be satisfied by the main modifications in the examination process. It followed that Lichfield had reached an integral part of an advanced local plan process.

The defendant, the first interested party and the second interested party all said that the claimant was barred by reason of section 113(2) of the 2004 Act.

Section 113 is headed ‘validity of strategies, plans and documents’ and the relevant parts say:

“(1). This section applies to-…

(c) a Development Plan document;

(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.

(3) A person aggrieved by relevant documents may make an application to the High Court on the ground that-

(a) The document is not within the appropriate powers;

(b) A procedural requirement has not been complied with.

(4) But the application must be made not later than the period of six weeks starting with the relevant date…

(11) Reference to the relevant date must be construed as follows-

(c) For the purposes of a Development Plan document (or a revision of it), the date when it is adopted by the Local Planning Authority or approached by the secretary of state (as the case may be);…”

The claimant contended that a Local planning authority resolution to adopt main modifications may be quashed firstly, through Section 113 and second by an application for judicial review. One did not exclude the other.

The claimant said that the submissions of the defendant, first interested party and second interested party were all predicated on the basis that the application was to quash a DPD. It was not. The claimant was seeking a quashing order of the main modifications.

However what was at issue were the main modifications which had been endorsed by the council within a local plan process approaching its end.

The court was not dealing with an early claim for judicial review testing the lawfulness of decision taking in the run up to a statutory process. Instead the court was dealing with a claim for judicial review taken during the statutory process. Far from saving time and expense that could add time and expense to the process then underway.

Although the claimant said it did not seek to question a document covered by Section 113, the claimant was actually seeking a quashing order of main modifications. If successful such a claim would abort the current plan making process when it was at an advanced stage.

That would lead to considerable delay and expense not only to the participants in that case but also to others who had made representations on the modifications which would be considered by the Inspector at the resumed examination.

The effect of a successful challenge would be to start that process off again: a re-making of main modifications, further consultation, further representations which would then be considered at a deferred examination.

Parliament had inserted the section 113 ouster in the statutory provision, precisely because of the potential chaos that could be caused by a successful challenge at that stage in the plan making process.

Once a document becomes a DPD within section 113 of the 2004 Act 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 DPD or a revision of it the date when it is adopted by the Local Planning Authority is the relevant date from when time runs to bring a statutory challenge.

Once a document had been submitted for examination it is a DPD. The main modifications which have been proposed and which will be the subject of examination are potentially part of that DPD.

Any other interpretation would licence satellite litigation at an advanced stage of the Development Plan process.

The claimant’s suggestion that at such a stage the claimant had a choice whether to challenge by way of judicial review or to await the adoption and then challenge under Section 113 was invalid.

The claim was not one that can be lawfully brought by reason of the operation of Section 113(2).

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.