I.M. Properties Development Ltd v Lichfield District Council

Once a development plan document has been submitted for independent examination, a challenge to main modifications forming part of that advanced statutory process is barred by Planning and Compulsory Purchase Act 2004, section 113(2). Judicial review remains available for genuinely antecedent decisions outside the statutory process.

Revision of Green Belt boundaries requires exceptional circumstances which necessitate the revision. Whether that test is met is principally a matter of planning judgment, informed by the duty to contribute to sustainable development. A political group instruction does not establish predetermination where councillors remain able to consider the evidence and debate the issue. A fair process may impose a common evidential cut-off while updating strategic appraisal documents required by statute.

The claimant sought judicial review of the defendant local planning authority’s decision to endorse main modifications to the emerging Lichfield Local Plan Strategy. The modifications proposed releasing land at Deans Slade Farm and Cricket Lane from the Green Belt to address an identified housing shortfall.

The claimant promoted an alternative new-village proposal on land north-east of Lichfield and alleged that the authority had misunderstood the legal test for Green Belt release, adopted an unfair process, and acted with predetermination. The defendant and interested parties argued that the claim was barred by section 113(2) of the Planning and Compulsory Purchase Act 2004. The central issue was whether the challenge could be brought before adoption of the plan.

1. Jurisdiction. The claim was barred by section 113(2) of the Planning and Compulsory Purchase Act 2004. The Lichfield Local Plan remained under examination, and the main modifications were an integral part of the advanced statutory process. Once a document had been submitted for examination, it was a development plan document for the purposes of section 113. A successful challenge would abort the process, require fresh modifications and consultation, and cause substantial delay and expense. The Manydown Company Ltd v Basingstoke and Deane Borough Council [2012] EWHC 977 concerned antecedent decisions relating to a pre-submission draft and did not govern this case.
2. Predetermination. Section 25 of the Localism Act 2011 is broadly framed. A prior email urging councillors to vote in a particular way was something done which indicated a view, but it did not itself establish a closed mind. The evidence showed a genuine and extensive debate, and there was no real possibility of predetermination.
3. Green Belt boundaries. The alleged “falsification doctrine” derived from Copas v Royal Borough of Windsor and Maidenhead [2001] EWCA Civ 180 was an overstatement of the judgment. The applicable test, confirmed in Gallagher Homes v Solihull Metropolitan Borough Council [2014] EWHC 1283, required exceptional circumstances necessitating revision of the boundary. That was a matter of planning judgment. The authority was entitled to consider housing needs, the Inspector’s findings, the sustainability appraisal, the Green Belt reviews, and the relative sustainability of the alternative proposal. The ground therefore failed.
4. Fairness. The authority was entitled to apply a common cut-off date to developer evidence while undertaking updated sustainability appraisal and strategic environmental assessment work. Those documents were iterative and integral to the development plan process. The claimant retained an opportunity to make representations at the resumed examination. The fairness ground failed.
5. The claim was dismissed for want of jurisdiction. The court would, if necessary, have dismissed the remaining grounds as well. Submissions were invited on the final order and costs.