IM Properties Development Ltd v Lichfield District Council & Ors

In examining a local plan, the inspector must determine both legal compliance and soundness. A conclusion that a sustainability appraisal is reliable may, read in context, discharge that duty where the inspector has addressed the legal criticisms made.

A sustainability appraisal is assessed by the whole decision-making process. A reasonable information cut-off is lawful where it permits completion of the appraisal, provided relevant later material is considered where appropriate and alternatives are assessed fairly and comparably.

Alteration of a Green Belt boundary requires exceptional circumstances which necessitate revision. Whether that test is satisfied is a matter of planning judgment, informed by sustainable development and the availability of suitable alternatives. Main modifications under section 20(7C) may make substantive changes and are not confined to textual amendments.

The claimant challenged the adoption of the Lichfield District Local Plan: Strategy under section 113(3) of the Planning and Compulsory Purchase Act 2004. The plan allocated Green Belt land at Deanslade Farm and Cricket Lane for development.

The challenge alleged that the examining inspector failed to determine the legality of the sustainability appraisal, that the appraisal and consultation process were unfair and unlawful, that the inspector applied the wrong Green Belt test, and that the recommended main modifications exceeded the statutory power to modify a plan.

The claim followed an earlier judicial review concerning the Council’s endorsement of the modifications. That claim had been dismissed on ouster grounds, although adverse substantive findings had also been made.

1. Ground 1 dismissed. The inspector’s statement that it was not his role to comment on the legality of the sustainability appraisal was unfortunate, but his report had to be read sensibly. He considered the parties’ legal submissions, examined the alleged defects, and expressly concluded that the plan complied with the legal requirements, including those concerning the sustainability appraisal.
2. Ground 2 dismissed. The information guillotine was a reasonable administrative cut-off. The claimant was later given an opportunity to submit relevant post-guillotine material, and the inspector considered material relating to its site. The appraisal assessed the alternatives on an equal and like-for-like basis. The explanatory notes were publicly available, so the process did not involve the inaccessible paper chase criticised in Berkeley v Secretary of State for the Environment. The requirements of the Environmental Assessment of Plans and Programmes Regulations 2004 concerned the whole appraisal process, not a single document.
3. Ground 3 dismissed. Following Gallagher Homes v Solihull MBC, exceptional circumstances for Green Belt release must necessitate alteration of the boundary. The issue is fact-sensitive and involves planning judgment, but the legal test remains one of exceptional circumstances. The absence of more sustainable sites outside the Green Belt, together with consistency with the plan’s urban and key-centre strategy, lawfully provided such circumstances. The proposed “falsification” principle derived from obiter observations in Copas v Royal Borough of Windsor and Maidenhead was not a universal legal requirement.
4. Ground 4 dismissed. Section 20(7C) contemplates substantive changes to a local plan. The statutory language imposes no prohibition on modifications amounting to a rewrite, and guidance cannot restrict the legislative intention. The extent of the modifications was itself a matter of planning judgment.

The application to quash the local plan was refused.

This was a first-instance judicial review challenge. The judgment records that an earlier related claim was dismissed by the High Court on 18 July 2014 under section 113 of the Planning and Compulsory Purchase Act 2004; permission to appeal was subsequently refused.