I.M. Properties Development Ltd v Lichfield District Council Taylor Wimpey (UK) Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 18 July 2014 |
| Neutral Citation | [2014] EWHC 2440 (Admin) |
| Date | 18 July 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1049/2014 |
[2014] EWHC 2440 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
BIRMINGHAM DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Patterson
Case No: CO/1049/2014
and
Anthony Crean QC (instructed by Shoosmiths LLP) for the Claimant
Gary Grant (instructed by Democratic, Development and Legal Services) for the Defendant
Morag Ellis QC and Hereward Phillpot (instructed by Berwin Leighton Paisner LLP) for the First Interested Party
Jeremy Cahill QC, Satnam ChoonghandJames Corbet Butcher (instructed by Squire Patton Boggs (UK) LLP) for the Second Interested Party
Hearing dates: 1st and 2nd July 2014
Introduction
This is an application by the claimant for judicial review of a decision by the defendant dated 28 th January 2014 to endorse the main modifications to the draft Lichfield Local Plan Strategy. The claimant seeks a quashing order of the decision.
The main modifications endorsed by the defendant include proposals to release areas of land known as Deans Slade Farm and Cricket Lane from the Green Belt. The former site is subject to an interest by Taylor Wimpey UK Limited, the first interested party, and the latter site is subject to an interest by Persimmon Homes Limited, the second interested party. Both Deans Slade Farm and Cricket Lane lie to the south of Lichfield and are close to the urban area.
Throughout the local plan process the claimant has been interested in, and has promoted, a new village concept on land to the North East of Lichfield known as land to the north east of Watery Lane, Curborough. In January 2014 the claimant submitted a planning application for up to 750 dwellings, primary school, care village, local neighbourhood facilities to facilitate retail development, community building, parking, comprehensive green infrastructure and landscaping, new access points to Watery Lane and Netherstone lane and improvements to Netherstone Lane. That was refused by the defendant, the Local Planning Authority on the 20 th May 2014 for seven reasons (including one that referred to the site being outside the settlement boundaries and not being allocated in the emerging local plan strategy). The Watery Lane site is not within the green belt.
The examination into the Lichfield Local Plan currently stands suspended whilst the Local Authority carry out further work to prepare main modifications to the Local Plan to seek to remedy the defects identified by the Local Plan Inspector at his interim examination. The defects meant that the Inspector was unable to find the submitted Local Plan sound.
Counsel for the claimant contends that his challenge raises the following issues. They are,
i) Whether the defendant has persistently misunderstood the approach to revisions of the green belt as a matter of law?
ii) Whether the defendant has adopted an unfair process in dealing with the claimant's land?
iii) Whether the actions of the Leader of the Council amount to pre-determination in the local plan context.
The defendant and the interested parties raise a fundamental and prior issue which is whether the court has jurisdiction to determine the claim at all by reason of the wording of Section 113(2) of the Planning and Compulsory Purchase Act 2004.
I propose to structure this judgment to deal with matters in the following order;
i) Jurisdiction;
ii) Predetermination;
iii) The approach to green belt boundaries;
iv) The fairness of the process adopted by the defendant.
To address those matters it is first necessary to set out the not entirely straightforward factual background of the emerging Local Plan. To that I now turn.
Factual background
In 2007 the Core Strategy Issues and Options document was published for consultation. Four alternative draft spatial options for how the district could develop up to 2026 were set out. They included a town focused development option which acknowledged that Green Belt release was likely to be required and a new settlement option. An advantage of the new settlement option was that it would not require any alteration to Green Belt boundaries.
In 2008 the Core Strategy Preferred Options was published for consultation. That included option 4 which was for a new settlement. It had one realistic location for development only that would be deliverable to meet identified housing needs: that was the claimant's land. The new settlement option was said also to require totally new infrastructure investment rather than making the best use of existing infrastructure.
In April 2009 a Policy Directions document was published. The strategy proposed was for town focused development. It was said to be a balanced form of growth across the district focused primarily on Lichfield and, to a lesser extent, Burntwood and the key rural settlements. Although growth was to take place where possible within settlements the document recognised that there would be a need for new sustainable communities and extensions to Lichfield. In the reasons for the preferred spatial strategy the document said,
"Lichfield city is considered to be by far the most sustainable community within the context of the district and should play the most significant role in the development strategy. In terms of creating sustainable communities this justifies the exceptional circumstances for removing land from the green belt to the south of Lichfield that would be required to follow the strategy.
In dealing with the alternative options the document said,
"1.17 Alternatively, the strategy could be amended to one that promotes a new settlement as a means of meeting the majority of housing requirements, but taking into account that the only identified proposal for a new settlement is the proposal at Curborough. Many consider that this strategy is not the most appropriate to meet the needs across the district, including those who exist in communities and that in light of the scale of the new settlement proposals and its proximity to the city, there is a risk of harm to the character of Lichfield."
In 2010 the defendant published "Shaping the District". That recognised that about 41% of the district's housing growth to 2026 would take place in and around Lichfield city. 59% of that was to be within the urban area with the remaining 41% to be delivered through the development of sustainable urban extensions to the south of the city.
The important role of the Green Belt was recognised,
"With the majority of new development being channelled towards the most sustainable urban areas of Lichfield and Burntwood which are excepted from the Green Belt."
The document continued,
"Detailed changes to the green belt boundary around the edge of Lichfield city urban area to meet the longer term development needs beyond 2028 will be considered through the local plan allocations document."
In November 2010 the defendant published a draft Core Strategy. That was subject to consultation until February 2011.
In November 2011 the claimant submitted a strategy report to promote a new village opportunity. That was followed up with a transportation study in January 2012.
In March 2012 the National Planning Policy Framework (NPPF) was published. The claimant updated its submissions to take into account the contents of the NPPF in May 2012.
A pre-submission Lichfield district Local Plan Strategy was published for consultation between July and September 2012.
In November 2012 a revised sustainability appraisal of the proposed Local Plan strategy was published. That included an appraisal of updated information for the proposed new village to the north east of Lichfield for 2,000 dwellings.
On the 22 nd March 2013 the draft Lichfield Local Plan Strategy was submitted to the Secretary of State. No Green Belt sites were included for development as part of that strategy because of the volume and strength of earlier objections to Green Belt releases.
In May 2013 the defendant published, as part of the examination into the soundness of the Lichfield Local Plan Strategy, a paper on the Green Belt. As part of that study it was noted that a strategic review of Green Belt boundaries had been undertaken in arriving at the preferred spatial strategy for Lichfield city and Burntwood. The earlier study had considered whether there were sustainable development needs within the plan period which required amendment to existing Green Belt boundaries and provided suggestions as to where they may be. It suggested that detailed changes as a result of housing growth in the longer term which required review of the Green Belt boundaries were deferred to the allocations stage of the plan. The council considered that its approach of deferring a full review of the detailed Green Belt boundary was justified as the changes would be non-strategic and may involve community participation. It was satisfied that its housing needs could be met without Green Belt release.
Examination hearings into the draft local plan took place between 24 th June and 10 th July 2013. One of those hearings was on the Green Belt. During that session the issue of whether there needed to be further release of land to meet future needs within the plan period was raised.
On the 3 rd September 2013 the Inspector, Mr R Yuille, wrote to the defendant with his preliminary views. He was satisfied that the defendant had discharged its duty to...
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