CHALLENGING DEVELOPMENT PLANS

IN THE HIGH COURT MAY 2013

SASHA WHITE Q.C.

A JUDGE ABOUT TO CONSIDER A DEVELOPMENT PLAN CHALLENGE!

A JUDGE CONSIDERING A DEVELOPMENT PLAN CHALLENGE!

SECTION 1 - INTRODUCTION 1. THIS IS A VERY IMPORTANT AREA OF PLANNING LAW.

2. IT IS UNQUESTIONABLY EXPANDING IN IMPORTANCE.

3. NUMEROUS RECENT CHALLENGES TO THE ADOPTION OF DEVELOPMENT PLANS IN THE HIGH COURT SUCH AS MANYDOWN , NEWMARKET AND COGENT.

4. THE DEVELOPMENT PLAN SYSTEM IS COLLAPSING BECAUSE:

1. THE PROCESS HAS BECOME FAR TOO COMPLICATED.

2. NUMEROUS AUTHORITIES NOW OPERATE WITHOUT SUCH A PLAN

3. THE NPPF HAS EFFECTIVELY BLOWN DEVELOPMENT PLANS OUT THE WATER AT A STROKE.

4. THE PROCESS OF ADOPTION HAS BECOME FAR LESS FORENSIC AND MEANINGFUL.

5. THE ABOLITION OF RSS HAS MADE IT MUCH MORE DIFFICULT FOR AUTHORITIES TO KNOW WHAT TO DO.

SECTION 1 - INTRODUCTION

1. WITH THE LACK OF FORENSIC EXAMINATION OF THE PROPOSALS AT INQUIRY STAGE THE SCOPE FOR CHALLENGES HAS DEFINITELY INCREASED.

2. COUNCIL’S EVIDENCE BASE AND THE EXAMINATION IN PUBLIC ARE UNQUESTIONABLY LESS PRONE TO EVIDENTIAL CHALLENGE PRIOR TO ADOPTION THAN UNDER THE PRE 2004 SYSTEM.

3. PURPOSE OF CODIFYING THE BASIS OF CHALLENGE BY WAY OF SECTION 113 IS TO PROVIDE CERTAINTY TO THE DEVELOPMENT PLAN SYSTEM – IN PARTICULAR IF A PLAN HAS NOT BEEN CHALLENGED WITHIN 6 WEEKS THEN IT IS IMMUNE FROM CHALLENGE.

SECTION 1 - INTRODUCTION

1. COUNCILS ARE UNDER A DUTY BY WAY OF PCA 2004 TO PRODUCE A DEVELOPMENT PLAN FOR THE AREA.

2. ALSO INCLUDES OTHER DEVELOPMENT PLAN DOCUMENTS SUCH AS SITE ALLOCATION DOCUMENTS.

SECTION 1 – INTRODUCTION 1. THE VALIDITY OF THE DEVELOPMENT PLAN AND ITS ADOPTION MAY BE

CHALLENGED IN THE HIGH COURT BY WAY OF SECTION 113 OF THE PLANNING AND COMPULSORY PURCHASE ACT 2004.

2. A DEVELOPMENT PLAN CAN ONLY BE QUESTIONED BY WAY OF SECTION 113. [SEE SECTION 113(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. BUT IN MANYDOWN IT WAS DECIDED THAT THE HIGH COURT WAS NOT PRECLUDED FROM CONSIDERING A JUDICIAL REVIEW CLAIM CONCERNING THE LAWFULNESS OF AN LPA’S FAILURE TO PROMOTE THE DEVELOPMENT OF LAND IT HAD EARLIER ACQUIRED. POSSIBLE TO CHALLENGE A PRE-SUBMISSION DRAFT, PUBLISHED OR ABOUT TO BE CHALLENGED FOR CONSULTATION DID NOT QUALIFY AS A DEVELOPMENT PLAN DOCUMENT FOR THE PURPOSES OF SECTION 113(1).

SECTION 1 – INTRODUCTION 1. WHAT IS A DEVELOPMENT PLAN FOR THE PURPOSES OF SECTION 113?

1. CORE STRATEGY [REGULATION 7 OF THE TCP LOCAL DEVELOPMENT REGULATIONS 2004]

2. RSS.

3. WALES SPATIAL PLAN.

4. MAYORS SPATIAL DEVELOPMENT STRATEGY.

2. SECTION 113 CHALLENGE IS FUNDAMENTALLY COMPLICATED BECAUSE BY WAITING TO ADOPTION THE LIKELY ALLEGED ILLEGALITY REQUIRES A PAPER CHASE OVER SOME YEARS AND NUMEROUS DOCUMENTS.

STRUCTURE OF LECTURE

1. THE SCOPE OF 113 CHALLENGES – ON WHAT GROUNDS CAN THE ADOPTION BE CHALLENGED?

2. WHO MAY CHALLENGE THE DEVELOPMENT PLAN

3. WHEN SHOULD THE CHALLENGE BE MADE?

4. WHAT IS THE PROCEDURE FOR THE CHALLENGE?

5. THE POWER TO GRANT INTERIM ORDERS

6. REMEDIES OPEN TO THE HIGH COURT

7. THE QUESTION OF PREJUDICE

8. SUMMARY AND CONCLUSIONS

SECTION 1 - THE SCOPE OF SECTION 113 CHALLENGES – ON WHAT GROUNDS CAN ADOPTION BE CHALLENGED?

1. SEE SECTION 113(3) – ON THE GROUND THAT THE DOCUMENT IS NOT WITHIN THE APPROPRIATE POWER OR A PROCEDURAL REQUIREMENT HAS NOT BEEN COMPLIED WITH.

2. IDENTICAL TO SECTION 287(2) OF THE TCPA 1990.

3. THE SECTION RESULTS IN A STATUTORY FORM OF JUDICIAL REVIEW – PERSIMMON HOMES V STEVENAGE BOROUGH COUNCIL [2005]EWCA 1365

4. TWO GROUNDS IN ESSENCE

1. THE DOCUMENT HAS BEEN ADOPTED BEYOND THE APPROPRIATE POWER OF THE LPA IE IT HAS ACTED ULTRA VIRES.

2. THE PROCEDURAL REQUIREMENTS AS SET OUT IN THE REGULATIONS HAVE NOT BEEN COMPLIED WITH – SEE SAVE HISTORIC NEWMARKET AND THE CLAIMANT CAN SHOW SUBSTANTIAL PREJUDICE.

5. OBVIOUSLY THERE IS SOME OVERLAP IN MANY CHALLENGES.

SECTION 1 - THE SCOPE OF SECTION 113 CHALLENGES – ON WHAT GROUNDS CAN ADOPTION BE CHALLENGED? 1. EXAMPLES OF GROUNDS OF CHALLENGE:

1. THE ADOPTION OF THE PLAN WAS ULTRA VIRES – BLYTH VALLEY BC.

2. THE COUNCIL HAS NOT FOLLOWED THE CORRECT PROCEDURE – SAVE HISTORIC NEWMARKET [2011]

3. THAT THE COUNCIL HAS NOT FOLLOWED THE REQUIREMENTS OF THE SEA DIRECTIVE – COGENT[2012] AND HEARD [2012]

4. A LOCAL AUTHORITY’S DEVELOPMENT PLAN WAS NOT SOUND – EVIDENCE THAT THE DEVELOPMENT PLAN WAS NOT FINANCIALLY VIABLE MADE IT IMPOSSIBLE TO UNDERSTAND THE INSPECTOR’S CONCLUSIONS THAT IT WAS SOUND – LINDEN HOMES LTD V BROMLEY LBC [2011] EWHC 3430. INCUMBENT UPON INSPECTOR TO GIVE PROPER REASONS AND FOR HIS CONCLUSIONS TO BE UNDERSTANDABLE.

5. IN UNIVERSITY OF BRISTOL V NORTH SOMERSET COUNCIL [2013] EWHC 231 INSPECTOR MISUNDERSTOOD EVIDENCE OF OBJECTOR AT EIP.

SECTION 1 - THE SCOPE OF SECTION 113 CHALLENGES – ON WHAT GROUNDS CAN ADOPTION BE CHALLENGED?

1. EXAMPLES OF GROUNDS OF CHALLENGE:

1. WHERE A SITE WAS ADDED WITHOUT CONSULTATION OR AN OPPORTUNITY TO MAKE REPRESENTATIONS IT COULD NOT BE LAWFUL – R (ON THE APPLICATION OF BARROW BC V CUMBRIA [2011] EWHC 2051 – COUNTY COUNCIL INCLUDED SITE M12 AT EXAMINATION STAGE.

2. LPA GIVEN NO OPPORTUNITY TO ENGAGE IN CONSULTATION PROCESS.

3. IF CHANGES ARE MADE AT THE EXAMINATION STAGE THEN PARTIES NEEDED AN OPPORTUNITY TO MAKE REPRESENTATIONS OR BEING A FRESH CONSULTATION PROCESS.

SECTION 1 - THE SCOPE OF SECTION 113 CHALLENGES – ON WHAT GROUNDS CAN ADOPTION NOT BE CHALLENGED?

1. EXAMPLES OF GROUNDS OF CHALLENGE NOT ACCEPTED:

1. HUNDAL V SOUTH BUCKS [2012] EWHC 791 –

1. REAR GARDED OF PROPERTY INCLUDED IN THE GREEN BELT IN LOCAL PLAN 1999. CORE STRATEGY CONTINUED WITH THAT DESIGNATION. BASIS OF 113 CHALLENGE WAS THAT 1999 BOUNDARY HAD NOT BEEN EXAMINED PROPERLY IN ACCORDANCE WITH NATIONAL GUIDANCE.

2. IF A PREVIOUS DEVELOPMENT PLAN HAD NOT BEEN CHALLENGED THEN IT WAS RIGHT IN LAW TO ASSUME THAT THE DECISIONS TAKEN WERE LAWFUL AND WERE NOT OPEN TO CHALLENGE IN A SUBSEQUENT DEVELOPMENT PLAN.

SECTION 2 – WHO MAY BRING A CHALLENGE UNDER SECTION 113?

1. SECTION 113(3) – A PERSON AGGRIEVED BY A RELEVANT DOCUMENT MAY MAKE AN APPLICATION TO THE HIGH COURT.

2. ANY PERSON WHO IN THE ORDINARY SENSE OF THE WORD IS AGGRIEVED BY THE DECISION – TIMES INVESTMENT LTD v SECRETARY OF STATE FOR THE ENVIRONMENT [1991] 61 P&CR 271.

3. COURTS LIKELY TO TAKE A BENEVOLENT APPROACH TO THIS AND NOT USUALLY USED AS A BASIS FOR REFUSING RELIEF IF THE CLAIMANT CAN SHOW SOME DEGREE OF BEING AGGRIEVED BY THE DECISION.

4. NOT AWARE OF ANY FINDING BY A COURT THAT A CLAIMANT DOES NOT MEET THIS TEST SINCE THE ENACTMENT OF SECTION 113.

5. IF THE COURT IS OF THE VIEW THAT THERE IS SOME BASIS TO THE CHALLENGE UNLIKELY TO FIND AGAINST THE CLAIMANT ON THIS BASIS.

SECTION 3 – WHEN SHOULD THE CHALLENGE BE MADE? 1. SECTION 113[4] – THE APPLICATION MUST BE MADE NOT LATER THAN

THE END OF THE PERIOD OF SIX WEEKS STARTING WITH THE RELEVANT DATE.

2. WHAT IS THE RELEVANT DATE?

3. SECTION 113(11] – FOR THE PURPOSES OF A DEVELOPMENT PLAN DOCUMENT OR ITS REVISION THE RELEVANT DATE IS WHEN IT IS ADOPTED BY THE LPA OR APPROVED BY THE SECRETARY OF STATE

4. SIX WEEK PERIOD COMMENCES FROM THE DATE OF ADOPTION – BARKER V HAMBLETON DC – 9 MAY 2012 AND HINDE V RUGBY BC [2011] EWHC 3684.

5. THAT PERIOD INCLUDES ANY BANK HOLIDAY – STAINER V SoSE [1994] JPL 44.

6. COURT IS LIKELY TO APPLY A STRICT APPROACH TO COMPLIANCE WITH THAT STATUTORY REQUIREMENT.

SECTION 3 – WHEN SHOULD THE CHALLENGE BE MADE? 1. SEE DECISION IN MANYDOWN - CHALLENGE TO THE PRE-SUBMISSION

CORE STRATEGY BY WAY OF JUDICIAL REVIEW.

2. SO NOT A CHALLENGE BY WAY OF SECTION 113.

3. BUT WHAT ABOUT THE PROVISIONS OF SECTION 113(2)

4. LINDBLOM J HELD THAT JUDICIAL REVIEW PROCEEDINGS COULD BE TAKEN AGAINST AN EARLIER STEP IN THE PROCESS.

5. EARLY AND PROMPT CLAIM FOR JUDICIAL REVIEW MAKES IT POSSIBLE TO TEST THE LAWFULNESS OF DECISIONS TAKEN IN THE STATUTORY PROCESS.

6. A SUBMISSION DRAFT PUBLISHED OR ABOUT TO BE PUBLISHED DID NOT QUALIFY AS A DEVELOPMENT PLAN DOCUMENT FOR THE PURPOSES OF SECTION 113.

SECTION 3 – WHEN SHOULD THE CHALLENGE BE MADE?

1. SO POSSIBLE TO CHALLENGE DECISIONS TAKEN IN THE COURSE OF THE PREPARATION OF THE DEVELOPMENT PLAN BY WAY OF JUDICIAL REVIEW PRIOR TO ADOPTION.

2. POST ADOPTION THEN SECTION 113(2) APPLIES.

LAW THEREFORE IS QUITE TRICKY NOW:

DECISIONS TAKEN IN THE COURSE OF THE PROCESS OF ADOPTION MIGHT BE SUSTEPTIBLE TO JUDICIAL REVIEW.

SECTION 4 – WHAT IS THE PROCEDURE FOR A SECTION 113 CHALLENGE?

1. APPLICATION TO THE HIGH COURT.

2. PARTICULARS OF CLAIM AND SUPPORTING WITNESS STATEMENT AND EVIDENCE.

3. NO REQUIREMENT TO GET LEAVE CURRENTLY.

4. ADMINISTRATIVE COURT FAVOURS THE PAPERS BEING LODGED IN THE CENTRE CLOSEST TO THE AUTHORITY CONCERNED BUT OPEN TO GO ELSEWHERE IF JUSTIFICATION.

5. IN COGENT CASE WENT TO CARDIFF ALTHOUGH LOCAL PLANNING AUTHORITY BASED IN ESSEX. LPA CONSENTED TO HEARING IN WALES BECAUSE CASE CAME ON IN 4 MONTHS RATHER THAN ONE YEAR.

6. ADMINISTRATIVE COURT IN LONDON IS GENERALLY EXPECTING ABOUT A YEAR TO HEAR SUCH PROCEEDINGS.

7. THEREFORE THERE IS STRONG MERIT IN GOING TO ONE OF THE REGIONAL COURTS FOR A QUICKER DETERMINATION.

SECTION 5 – THE POWER TO GRANT INTERIM ORDERS

1. ON ANY SUCH APPLICATION THE HIGH COURT MAY BY INTERIM ORDER WHOLLY OR IN PART SUSPEND THE OPERATION OF THE PLAN EITHER GENERALLY OR IN SO FAR AS IT AFFECTS ANY PROPERTY OF THE APPLICANT UNTIL THE FINAL TERMINATION OF PROCEEDINGS.

2. MIGHT BE VERY IMPORTANT IN THE CASE OF A COUNCIL ABOUT TO ISSUE A VERY LARGE HOUSING PERMISSION FOR EXAMPLE.

3. THE POWER TO GRANT INTERIM RELIEF WAS DISCRETIONERY – TERRY ADAMS V BOLTON [1996] P&CR 446.

4. FIRST QUESTION WAS WHETHER THERE WAS AN ARGUABLE CASE.

5. WHETHER THERE WAS A REAL PROSPECT THAT THE COURT WOULD THINK IT RIGHT TO GRANT THE RELIEF SOUGHT ON THE BALANCE OF CONVENIENCE

6. THE COURT WOULD ALSO CONSIDER THE EXTENT TO WHICH THE APPLICANT WAS LIKELY TO BE DISADVANTAGED IF THE INTERIM RELIEF WAS REFUSED.

SECTION 6 – REMEDIES OPEN TO THE HIGH COURT ON THE SUBSTANTIVE DETERMINATION OF THE APPEAL. 1. THE COURT MAY ALSO IF SATISFIED THAT THE PLAN IS WHOLLY OUTSIDE

THE POWERS OF THE ACT OR THE INTERESTS OF THE APPLICANT HAVE BEEN SUBSTANTIALLY PREJUDICED BY A FAILURE TO COMPLY WITH THE PROCEDURAL REQUIREMENTS:

1. WHOLLY QUASH THE PLAN.

2. IN PART QUASH THE PLAN IE A FEW POLICIES.

3. EITHER GENERALLY

4. OR SPEICIFICALLY AS IT AFFFECTS THE PROPERTY OF THE APPLICANT.

5. REMIT THE RELEVANT DOCUMENT TO A PERSON OR BODY WITH THE FUNCTION RELATING TO ITS PREPARATION, PUBLICATION, ADOPTION OR APPROVAL.

6. ALSO GIVE DIRECTIONS AS TO THE ACTION TO BE TAKEN IN RELATION TO THE DOCUMENT LIKE SAYING THAT CERTAIN PROCESSES IN THE ADOPTION HAVE BEEN TAKEN OR NOT BEEN TAKEN [SUBSECTION 7B]

7. REQUIRE ACTION TO BE TAKEN.

SECTION 6 – REMEDIES OPEN TO THE HIGH COURT ON THE SUBSTANTIVE DETERMINATION OF THE APPEAL.

1. SO VERY IMPORTANT THAT SIGNIFICANT THOUGHT GIVEN BY CLAIMANT AS TO WHAT REMEDY IS SOUGHT.

2. OBVIOUSLY THE REQUIREMENTS OF THE CLIENT MUST BE SATISFIED BUT NO POINT GOING AGAINST WHOLE PLAN IN MOST CASES.

3. NEEDS TO BE A FOCUS ON THE SPECIFIC POLICIES OF CONCERN.

4. POSSIBLE FOR PART OF THE PLAN TO BE QUASHED.

5. THEN PART OF PLAN WILL BE ADOPTED AND ANOTHER PART WILL BE REQUIRED TO BE AMENDED BY THE LOCAL PLANNING AUTHORITY.

SECTION 6 – REMEDIES OPEN TO THE HIGH COURT

1. IN PRACTICE THE COURT WILL SEEK SUBMISSIONS ON THE REMEDIES THAT SHOULD BE MADE AND THE NATURE OF THE ORDER THAT THE COURT SHOULD MAKE IN THE LIGHT OF A SUCCESSFUL CHALLENGE UNDER SECTION 113.

2. THAT HAPPENED IN HEARD WHERE THE APPLICATION WAS SUCCESSFUL

3. AND COGENT [PRIOR TO JUDGMENT] WHERE THE APPLICATION WAS UNSUCCESSFUL.

SECTION 7 – THE QUESTION OF PREJUDICE.

1. IF IT IS ALLEGED THERE HAS BEEN A PROCEDURAL BREACH FOR EXAMPLE OF THE REGULATIONS THEN IT IS NECESSARY FOR THE CLAIMANT TO SHOW PREJUDICE.

2. IT IS IMPORTANT THAT A PROCEDURAL BREACH HAS IMPORTANT IMPLICATIONS THAT AMOUNT TO PREJUDICE TO THE CLAIMANT OTHERWISE THE COURT MIGHT WELL EXERCISE ITS DISCRETION NOT TO ORDER A QUASHING OF THE PLAN.

3. IF NOT WITHIN THE APPROPRIATE POWER THEN NO NEED TO SHOW PREJUDICE – SAVE NEWMARKET AT PARAGRAPH 9.

4. THE COURTS HAVE CONSTRUED THIS GROUND AS EQUATING EFFECTIVELY TO THE GROUNDS RELATING TO JUDICIAL REVIEW.

5. IF THE CLAIMANT HAS BEEN AFFORDED EVERY OPPORTUNITY TO PARTICIPATE IN THE PUBLIC CONSULTATION AT EVERY ITERATION OF THE PLAN UP UNTIL ADOPTION THEN THE CLAIMANT CANNOT BEGIN TO SHOW PREJUDICE – HEARD V BROADLAND DISTRICT COUNCIL AND OTHERS [2012] EWHC 344 – BUT HERE CLAIMANT HAD BEEN DENIED SUCH AN OPPORTUNITY AND RELIEF GRANTED.

6. IN EXERCISING ITS DISCRETION THE COURT WILL LOOK AT THE HISTORY OF THE MATTER AND SEE THE INVOLVEMENT OF THE CLAIMANT AND ITS PARTICIPATION IN THE PROCESS.

SECTION 7 – THE QUESTION OF PREJUDICE

• VERY DIFFICULT AREA DURING THE PROCESS OF ADOPTION.

• TWO STRATEGIES –

– CONCEALMENT

• BENEFIT IS THE LPA CANNOT TRY AND REMEDY THE BREACH.

• DISBENEFIT - COURT MIGHT ASK WHY THE CLAIMANT LAY IN WAIT FOR ADOPTION AND FAILED TO MAKE ALLEGATION EARLIER.

– DISCLOSURE

• BENEFIT – COURT WILL BE SATISFIED THAT ILLEGALITY WAS BROUGHT TO THE ATTENTION OF THE LPA

• IN COGENT THE CLAIMANT INFORMED THE LPA OF FAILINGS IN SEA AND THE DECISION IN SAVE NEWMARKET.

• LPA THEN DID AN ADDENDUM TO SA IN MAY-JUNE 2011 WELL AFTER EIP HAD COMMENCED AND SOUGHT TO REMEDY ANY ALLEGED BREACH IN THE PROCESS.

• COURT HELD THAT WAS AN ACCEPTABLE APPROACH.

SECTION 7 – SUMMARY AND CONCLUSIONS.

• TO CHALLENGE ADOPTION OF A PLAN – SECTION 113.

• PRIOR TO ADOPTION MIGHT NECESSITATE A JUDICIAL REVIEW.

• NEEDS VERY CAREFUL CONSIDERATION.

• APPROACH TO THE LPA ALSO NEEDS CAREFUL CONSIDERATION.

SECTION 7 – SUMMARY AND CONCLUSIONS.