R CK Properties (Theydon Bois) Ltd v Epping Forest District Council
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE LANG,Mrs Justice Lang |
| Judgment Date | 20 March 2018 |
| Neutral Citation | [2018] EWHC 885 (Admin) |
| Date | 20 March 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/997/2018 |
[2018] EWHC 885 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Mrs Justice Lang
CO/997/2018
Mr C Lockhart-Mummery QC appeared on behalf of the Claimant.
Mr M Beard appeared on behalf of the Defendant.
The claimant applies for permission to apply for judicial review of the defendant's decision made on 14 December 2017 to agree and publish the draft Epping Forest District Local Plan (Submission Version December 2017) (“the 2017 Draft LP”) and that consequential steps be agreed. If permission is granted the claimant also seeks interim relief in the form of an order restraining the defendant from submitting the 2017 Draft LP to an inspector for examination.
This application was listed for an urgent permission hearing pursuant to the orders of Supperstone J on 9 March and Lewis J on 13 March 2018.
The statutory framework is contained in Part 6 of the Planning and Compulsory Purchase Act 2004 (“the PCPA 2004”) and the Town and Country Planning (Local Planning) (England) Regulations 2012 (“the 2012 Regulations”).
The claimant is a development company which wishes to develop approximately 133 homes on its proposed site (“the Site”). The defendant is the local planning authority for the area in which the Site is situated. Although the Site was allocated for residential development in the Draft Local Plan for consultation in October 2016, it was excluded from the 2017 draft document which was approved on 14 December 2017.
Prior to the decision of 14 December 2017, the defendant made available the “Site Selection report”, prepared by Arup, which was an item of key evidence informing the defendant's approach to settlements according to para.5.7 of the 2017 Draft LP. The report referred in general terms to site selection, relying upon the detail that was given in Appendix B headed “Assessment of Residential Sites”. Unfortunately, Appendix B was not circulated with the report prior to the meeting as it had not yet been finalised. It was not published until 14 March 2017.
Appendix B runs to about 630 pages. It contains reasons for the exclusion of this Site as follows:
“Although the site was proposed for allocation in the Draft Local Plan (2016) and remains available within the first 5 years of the planned period it is not proposed for allocation. Responses received through the Reg.18 Local Plan Consultation indicated that the site is less preferred by the community as a result of the scale of growth proposed. Additionally, the Conservators of Epping Forest raised concerns about the overall scale of growth in Theydon Bois which is located in close proximity to the Epping Forest SAC and the potential effects arising from recreational pressure and air quality. The Conservators identified the need for a SANG to compensate for the scale of growth which may adversely affect the deliverability of the site. It was considered that other sites in Theydon Bois were more preferable.”
The 2017 Draft LP was published for the period between 18 December 2017 and 29 January 2018 in accordance with reg.19 of the 2012 Regulations. The claimant made representations under reg.20 of the 2012 Regulations. Although they were detailed they did not directly address the reasoning set out in Appendix B.
Jurisdiction
The defendant submits that the court has no jurisdiction to consider this claim because it is governed by s.113 PCPA 2004 which provides an exclusive statutory remedy for a challenge to the lawfulness of, inter alia, development planning documents and local development plans. In R (Manydown Ltd) v Basingstoke and Deane Borough Council [2012] EWHC 977 Admin, Lindblom J held that an antecedent decision as to whether to include a particular site in the pre-submission Core Strategy, and a decision to approve a pre-submission draft of the Core Strategy for consultation, did not fall within the scope of s.113 and judicial review was permissible. Lindblom J accepted obiter (at para.86) since the submission draft of a development plan document is described as a development plan document in s.20 PCPA 2004 it may well be a “relevant document” for the purposes of s.113. That decision was carefully analysed by Patterson J in IM Properties Development Ltd v Lichfield District Council [2014] EWHC 2440 Admin. Patterson J said that once a document has been submitted for examination it is a development plan document within s.113.
Both those cases may be distinguished from this one on the particular facts. In my view, there remains room for reasonable argument that the claimant is challenging the steps taken, or not taken, by way of preparation for submission of the local plan and that this is not a challenge to the development plan document or local plan itself. I am not persuaded, therefore, that the claimant should be shut out from his claim on the jurisdiction ground at permission stage. The jurisdictional ground merits full argument from both sides at a substantive hearing.
The claimant's grounds
The claimant submits that by failing to supply Appendix B when the report was published the defendant acted unlawfully in the following respects:
10.1. it was in breach of its adopted statement of community involvement which promises that supporting studies should be made available;
10.2. it was in breach of the duty under s.19(6) PCPA 2004 and reg.19(1) of the 2012 Regulations to make available a copy of each of the proposed submission documents;
10.3. it made its decision on 14 December 2017 on an incomplete evidential basis because members did not have the important information in Appendix B, and that meant they could not properly find that the submission version was ‘sound’;
10.4. the process under reg.19 and reg.20 of the 2012 Regulations was procedurally unfair because the claimant had not had the opportunity to address the reasons in Appendix B for the site's removal from the 2017 Draft LP.
Conclusions
Despite Mr Beard's cogent submissions, I consider that these grounds do pass the threshold of arguability which is not a high one. Although some grounds are stronger than others, I grant permission on all of them as they all relate to the same issue.
Having read the defendant's evidence, I well understand why it was not possible to finalise Appendix B sooner, but that raises the question why the defendant pushed ahead with such an important decision when the supporting reports had not yet been completed and even its members were not fully informed. Judging from the contemporaneous material, it appears that the reason was that the defendant wanted to submit the 2017 Draft LP before 31 March 2018 when it appeared that increased housing requirements would be imposed upon it.
In September 2017 the Ministry of Housing, Communities and Local Government issued a consultation paper with a revised methodology for the calculation of housing need in local plans. If applied to this area, there would be a significant increase in the defendant's housing requirement. The proposal was that the revised methodology would be used unless the local plan was submitted for examination on or before 31 March 2018. The evidence suggests that it was because of this deadline that the defendant was trying to push this decision through before the supporting documentation had been finalised.
However in early 2018 the position changed, following further advice from the Ministry, so that local plans submitted up to six months after publication of the revised NPPF (expected in the summer of 2018) were only expected to comply with the current policy, not the revised policy.
The defendant submits that permission should be refused because the outcome would be no different if the defendant had to retake its decision. I cannot say whether, if the claimant and the council members had been fully informed, that the outcome would have been the same. I am not prepared to refuse the application on this basis at permission stage.
The defendant also submits that the claimant has an alternative remedy as it can raise with the inspector its complaints about the decision-making process and the planning merits of allocating the site for residential development.
The claimant will indeed be able to argue the planning case for the site to be allocated but the claimant is concerned that its reg.20 representations, made without sight of Appendix B, do not do justice to its case. It is a matter for the discretion of the inspector whether to allow further representations, despite the PINS Examination Guidance restricting further representations.
In my view, some aspects of the claimant's challenge to the defendant's procedures prior to submission can be considered by the inspector under s.20 PCPA 2004 but not the entirety of the claimant's challenge. Moreover the inspector's primary focus under the legislation is the plan. He will not apply the same criteria as...
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