IM Properties Development Ltd v Lichfield District Council (1) Taylor Wimpey UK Ltd (1st Interested Party) (2) Persimmon Homes Ltd (2nd Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeThe Honourable Mr Justice Cranston,Mr Justice Cranston
Judgment Date20 July 2015
Neutral Citation[2015] EWHC 2077 (Admin)
Docket NumberCase No: CO/803/2015
Date20 July 2015

[2015] EWHC 2077 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Cranston

Case No: CO/803/2015

Between:
IM Properties Development Limited
Claimant
and
Lichfield District Council
Defendant
(1) Taylor Wimpey UK Limited
1st Interested Party
(2) Persimmon Homes Limited
2nd Interested Party

Anthony Crean QC (instructed by Shoosmiths Solicitors) for the Claimant

Giles Cannock (instructed by Bal Nahal, solicitor for Lichfield DC) for the Defendant

Morag Ellis QC (instructed by Berwin Leighton Paisner) for the 1 st Interested Party

Satnam Choongh and James Corbet Burcher (instructed by Squire Patton Boggs (UK) LLP) for the 2 nd Interested Party

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Hearing dates: 10/06/2015

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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Honourable Mr Justice Cranston Mr Justice Cranston
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Introduction

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1. This is an application under section 113(3) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to quash the Lichfield District Local Plan: Strategy ("the local plan") made on 17 February 2015 by the defendant local planning authority, Lichfield District Council ("the Council"). The claimant is the promoter of development on a site to the north east of Lichfield, off Watery Lane, Curborough. Its application for planning permission for 750 houses on that site was refused by the Council. The claimant has appealed. The public inquiry for purposes of the appeal commenced on 10 March 2015 but the inspector's report to the Secretary of State is delayed to await the outcome of the current claim.

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2. The interested parties are Taylor Wimpey UK Ltd ("Taylor Wimpey") and Persimmon Homes Ltd ("Persimmon"). Taylor Wimpey is promoting the development of land at Deanslade Farm, Lichfield, on a site allocated for housing under the local plan; Persimmon is promoting the development of land at Cricket Lane, Lichfield, pursuant to an option agreement with the landowners and St. Modwen Developments, on a site also allocated for residential and employment development under the local plan. Both these sites are to the south of Lichfield and are in the green belt.

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3. The grounds of the application are that (1) the planning inspector appointed to conduct the examination into the local plan erred in failing to determine whether the Council's sustainability appraisal complied with the relevant legal and procedural requirements; (2) the sustainability appraisal and the process of consideration of alternatives by the Council and the planning inspector were legally flawed and unfair; (3) the planning inspector adopted the wrong approach when considering whether it was appropriate to alter the green belt boundaries by releasing the Deanslade Farm and Cricket Lane sites for housing; and (4) the Council had no power to adopt the local plan with the main modifications proposed in respect of the green belt sites, since this departed fundamentally from the spatial strategy it originally set out. The last is said to be a novel legal point.

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Background

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4. For part of the factual background I gratefully adopt relevant passages in a judgment of Patterson J in a judicial review brought by the claimant against the Council as defendant, R (on the application of IM Properties Development Ltd) v. Lichfield District Council [2014] EWHC 2440 (Admin); [2014] P.T.S.R. 148 At appropriate points I have supplemented these passages, those parts appearing in italics.

"[9] 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.

[10] 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.

[11] In April 2009 a Policy Directions document was published. The strategy proposed was for town focused development…

[12] 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.

[13] 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."

[14] In November 2010 the defendant published a draft Core Strategy. That was subject to consultation until February 2011."

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5. In February 2011, the owner of the land off Watery Lane, Curborough, now promoted by the claimant put into the public domain proposals for it as an alternative to the Council's strategy, the "new village or new settlement option".

"[15] 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.

[16] 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.

[17] A pre-submission Lichfield district Local Plan Strategy was published for consultation between July and September 2012.

[18] 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.

[19] 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.

[21] 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.

[22] 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 co-operate, that the submitted sustainability appraisal was a reliable piece of evidence, that the strategic development areas, the adopted strategy and the broad development locations identified were soundly based. However, he was concerned that the submitted plan was unsound as it did not make adequate provision for the objective assessment of housing need contained in its own evidence base.

[23] The Inspector considered that finding a site or sites for an additional 900 houses was a strategic matter that should be dealt with through the plan itself.

[30] On the 4 th September 2013 the defendant wrote to the Inspector thanking him for his interim findings and confirmed that it was willing to identify a further site or sites to address the identified current housing shortfall. That required further sustainability appraisal work which had been commissioned. That was to be undertaken on the basis of the information supplied and available to the council by the close of the hearings sessions on the 10 th July. No further information was to be accepted."

This is the so-called guillotine, which the claimant complained about in early January 2014.

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6. On 7 January 2014, the Council's Environment and Development (Overview and Scrutiny) Committee considered a report to update it on the progress of the local plan and to identify a series of main modifications to it, including those required to address the housing shortfall identified by the planning inspector. To achieve this, the report proposed the release of green belt land at the Cricket Lane and Deanslade Farm sites.

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7. The claimant formally submitted an application for outline planning permission for up to 750 dwellings with associated infrastructure on 16 January 2014. As mentioned earlier, the application was refused – on 20 May 2014 – and the claimant has appealed.

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8. The Council's cabinet considered the main modifications proposed to the local plan and these were endorsed by a meeting of the full Council on 28 January 2014. A six week consultation began on the Local Plan Strategy: Main Modifications on 6 February 2014. The letter/email announcing the consultation said that it was to address issues of legal compliance and soundness. In bold type there appeared this statement: "Representations should only relate to the main modifications. This consultation is not an opportunity to repeat or raise further representations about the published plan…" It referred to...

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