Following a consultation process in which the claimant had participated, the local planning authority decided to submit a draft local plan for independent examination by a planning inspector. The claimant, who wished to develop a site excluded from the draft local plan, sought judicial review challenging the lawfulness of the decision on the ground, inter alia, that the authority had failed before coming to its decision to make proposed submission documents available as required by regulation 19 of the Town and Country Planning (Local Planning) (England) Regulations 2012. The local authority raised the threshold question whether the term “development plan document” in section 113 of the Planning and Compulsory Purchase Act 2004, considered in the context of Part 6 of the 2012 Regulations, included the “submission version” or “submission draft” of such a document so as to bar the claim.
On the claim—
Held, claim dismissed. (1) The scope of an ouster provision such as that in section 113(2) of the 2004 Act had to be determined according to its own terms and the particular statutory context. Having regard to the statutory context, namely sections 17(8)(a), 37(3) and 113 of the 2004 Act only a challenge to an adopted local plan was precluded by section 113(2) otherwise than by a challenge made under the provisions of section 113. Further, the claimant’s challenge to the steps taken, or not taken, by way of preparation for submission of the local plan was not a challenge to the development plan document or local plan itself. Accordingly, the proceedings were not ousted by section 113(2) of the 2004 Act (paras 50, 52, 53).
(2) The local planning authority had had sufficient evidence to reach a conclusion as to whether or not the draft local plan was sound so as to be ready for submission for independent examination. The absence of access to certain documents during the consultation process had not excluded the claimant from participation. Further, while a proposed submission document had been unavailable at the time of the decision, and during the six-week publication period required by regulation 19 of the 2012 Regulations, there had been no prejudice to the claimant. The regulation 19 publication was not a consultation exercise, it was the mechanism by which interested persons were provided with an opportunity to make representations on the draft plan to enable them to participate in the process of independent examination. On the facts, the claimant had made representations challenging the soundness and legal compliance of the draft plan which would be considered by the inspector appointed to examine the local plan. Moreover, following the grant of permission to proceed with the claim, the authority had written to certain interested persons who had raised the absence of access to the proposed submission document, offering them an opportunity to supplement those representations. While it was a matter for the inspector to decide whether it was appropriate to take those additional representations into account, or allow interested persons the opportunity to make additional written representations during the examination process, there was no real likelihood of him refusing to take such representations into account (paras 73, 79, 80, 81, 85, 86).
Christopher Lockhart-Mummery QC (instructed by Howes Percival llp, Northampton) for the claimant.
Mark Beard (instructed by Epping Forest District Council) for the local planning authority.