Lochailort Investments Ltd v Somerset Council (Formerly Mendip District Council)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] EWHC 1776 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/709/2023 and CO/323/2022 |
and
[2023] EWHC 1776 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/709/2023 and CO/323/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Findlay KC and Ben du Feu (instructed by Town Legal LLP) for the Claimant
David Forsdick KC (instructed by Somerset Council) for the Defendant
Jonathan Welch (instructed by DLA Piper UK LLP) for the Claimant
The Secretary of State for Levelling Up, Housing and Communities and Redrow Homes Limited did not appear in CO/323/2022 and were not represented.
Hearing date: 29 June 2023
APPROVED JUDGMENT
Introduction
On 16 December 2022 I handed down judgment allowing the application by Norton St. Philip Parish Council (“NSPPC”) under s.113 of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) for statutory review of the adoption by the former Mendip District Council (“MDC”) of the Mendip District Local Plan 2006–2029 Part II: Sites and Policies (“LPP2”) ( [2022] EWHC 3432 (Admin)). That decision had been taken on 20 December 2021.
The court ordered that 5 allocations of housing sites be remitted and that MDC should reconsider which sites should be allocated and then submit modifications of LPP2 for examination by an independent Inspector. MDC was required to amend LPP2 and the accompanying Policies Map. These proceedings are concerned with the legality of a change made by MDC to the Policies Map. I am grateful to counsel for their helpful written and oral submissions.
LPP2 complements the Mendip District Local Plan 2006–2029 Part I: Strategy and Policies (“LPP1”) which was adopted on 15 December 2014. LPP1 sets out an overall spatial strategy for the District, specific policies for the five main towns and broad principles for directing development across the rest of the District. LPP1 also made strategic allocations of land and identified Future Growth Areas. LPP2 contains more detailed policies and makes non-strategic allocations.
On 1 April 2023 Somerset Council (“SC”) was formed as a unitary authority and successor to Somerset County Council, MDC and three other district councils. SC is substituted for MDC as the defendant in CO/323/2022 and in CO/709/2023.
The factual context and legal framework for the present dispute was set out in some detail in my earlier judgment and need not be repeated here. I will summarise the background briefly.
Policy CP2 of LPP1 sets an overall housing requirement figure for the district of 9,635 dwellings over the period 2006–2029. This included an additional 505 dwellings, the provision of which was left to LPP2.
In the draft version of LPP2 submitted to the Secretary of State for Levelling Up, Housing and Communities for examination by an independent Planning Inspector MDC did not propose any allocations of land to meet the need for 505 additional dwellings. They considered that this requirement had largely been met through “unplanned commitments”, that is by the grant of planning permissions rather than by allocations.
The Inspector examining LPP2 disagreed. He considered that LPP1 required additional allocations of land to provide for 505 dwellings and that they should be in the north-east quadrant of the district. He stated that unless “main modifications” were made to LPP2 under s.20(7B) and (7C) of the PCPA 2004 to meet those requirements, the plan would be unsound and therefore legally incapable of being adopted (s.20(7A) and s.23(2A), (3) and (4)).
MDC accepted the Inspector's interpretation of LPP1 and proposed modifications of LPP2 to allocate land on 5 sites in the north-east of the district, providing 510 dwellings. Policy NSP1 proposed to allocate as one of those sites land at Mackley Lane, Norton St. Philip for 27 dwellings. Lochailort Investments Limited (“Lochailort”), a developer, owns that site. Policy BK1 proposed to allocate a site for 28 dwellings at Beckington. Redrow Homes Limited has an option to acquire that site. In addition three allocations were proposed at Midsomer Norton, MN1, MN2 and MN3, providing another 455 dwellings in total. Previously those five areas of land had been shown on the policies map accompanying the submission version of LPP2 as lying outside the development limits of the settlements and therefore subject to restraint policies.
In his report following the completion of the Examination of LPP2 the Inspector concluded that the Plan would be unsound, and therefore incapable of adoption, unless main modifications were made, including the allocation of the 5 sites in the north-east of the district. MDC agreed with those modifications and were therefore able to adopt LPP2 on that basis.
NSPPC brought a challenge to the policies in the plan for the allocation of those 5 sites. They sought an order remitting policies NSP1, MN1, MN2, MN3 and BK1 and related text of LPP2. In my judgment I upheld two grounds of challenge falling within s.113(6) of the PCPA 2004:
(1) The Inspector and MDC misinterpreted LPP1 as requiring the additional housing of 505 units to be allocated in the north-east part of the district, rather than in the district as a whole in accordance with the spatial distribution strategy, policy CP1 of LPP1;
(2) MDC had failed to consider any “reasonable alternatives” to allocating the additional sites in the north-east of the district in breach of reg.12(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No. 1633).
The order made on 16 December 2022
In order to give effect to the judgment, the court had a discretion either to quash or to remit LPP2 as a whole or relevant parts thereof (s.113(7) and (7C)). Where the court remits a plan or part of a plan it may give directions as to the actions to be taken in relation to that document (s.113(7A)). Those directions may include inter alia treating the plan (or parts thereof) as not having been adopted, or requiring action to be taken by a person or body with a function relating to the preparation, publication or approval of the plan.
A quashing order results in the local authority having to recommence the plan-making process from the beginning to the extent that the plan is quashed ( South Northamptonshire District Council v Charles Church Developments Limited [2000] PCLR 46). The powers to remit with directions provide the court with an alternative remedy to quashing the whole or part of a plan. These powers are broad and flexible, subject to the principle that the court may not intrude upon the role of the plan-making authority, or as the case may be the Inspector, on matters of planning judgment. The court's power to make directions enable it to fit the relief it grants to the particular error of law in the particular circumstances which have occurred. In some cases directions may be made to give proper effect to a planning judgment already exercised lawfully by an authority or by an Inspector, to ensure that it is properly reflected in the outcome of the process, but the relevant consequences of that judgment must be plain (see Woodfield v JJ Gallagher Limited [2016] 1 WLR 5126 at [24]–[34]).
Here there was no dispute about the legality of the conclusions by the Inspector and MDC that the 505 units should be provided as allocations in LPP2, and that unless main modifications were made to achieve that outcome, LPP2 would be unsound and therefore incapable of being adopted lawfully at all. The key error had been to confine the area of search for those allocations to the north-east of the district, on an erroneous reading of LPP1.
Given that the legal flaws related to a limited number of policies, the question for the court was whether it was possible to avoid quashing or remitting the whole of LPP2 while giving effect to the lawful conclusions of the Inspector and MDC on what needed to be done in order to overcome the “unsoundness” bar on adoption, namely to allocate sites for 505 dwellings.
The submissions made by the Secretary of State on the draft order were very much alive to this point. He submitted that the court's directions would be incomplete unless they required MDC not only to consider making district-wide allocations of sites to provide 505 dwellings in accordance with CP1 and CP2 of LPP1, but also to submit formal modifications to LPP2 to the Secretary of State for examination, and upon completion of the examination process to take a decision on the modifications and the new Inspector's report in accordance with s.23 of the PCPA 2004.
Counsel then appearing for MDC suggested that those additional directions were unnecessary. He said that “the inevitable consequence” was that MDC or its statutory successor would have to submit proposed modifications to LPP2 for examination.
Although MDC accepted that consequence, I did not agree that it was inevitable and so it was necessary for the court to make directions on the lines proposed by the Secretary of State. However, given the Inspector's unchallenged finding that the plan was unsound, which could only have been overcome by a main modifications process properly carried out, I decided that there must be modifications to LPP2 specifically to address the allocation of 505 dwellings. I did not accept the suggestion that that issue could be left to be dealt with by an overall review of LPP2 as a whole at some time in the future.
As a result, the order I made on 16 December 2022 included the following directions:
“2...
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