Woodfield v J.J. Gallagher Ltd & Ors

On a successful challenge to the adoption of a local plan, section 113 of the Planning and Compulsory Purchase Act 2004 permits mandatory directions requiring an inspector to recommend, and a local planning authority to adopt, a specified modification. The court must not substitute its own planning judgment. Such directions are lawful where the relevant planning judgment has already been exercised within the plan-making process and its necessary consequences are clear. A focused correction is appropriate where the inspector’s report is clear but the formal recommendation or adopted policy fails to give effect to it. Full public participation and environmental assessment need not be repeated where the correction does not materially alter the policy’s protective framework.

Gallagher challenged Cherwell District Council’s adoption of its local plan under section 113 of the Planning and Compulsory Purchase Act 2004. The challenge concerned Policy Bicester 13, allocating land for housing while stating that the part within a Conservation Target Area should remain free from built development.

Patterson J. held that the inspector’s reasoning was irreconcilable with that restriction. She ordered that the policy be treated as not adopted, directed the Secretary of State to appoint an inspector to recommend deletion of the restriction, and required the council to adopt the policy in that form: [2016] EWHC 290 (Admin). Woodfield appealed against the remedial directions, arguing that they exceeded section 113, involved an impermissible planning judgment, and bypassed public participation and environmental assessment. The central issue was whether the court could impose that focused remedy.

Appeal dismissed. Lindblom LJ gave the judgment, with which Laws LJ agreed.

1. Section 113(7), (7A), (7B) and (7C) of the Planning and Compulsory Purchase Act 2004 gives the court a broad and flexible remedial power. It may require action by an inspector or local planning authority, including a recommendation for a specified modification and adoption of the plan with that modification. The court treated [2013] EWHC 231 (Admin) as recognising the deliberate expansion of these powers.
2. The power has a firm constitutional boundary. The court cannot determine the substance of planning policy or substitute its own planning judgment. A direction requiring a particular modification is permissible only where the relevant planning judgment has already been lawfully exercised in the plan-making process, its consequences are plain, and the direction merely corrects the identified legal error.
3. The inspector’s report, read as a whole, clearly endorsed 300 dwellings and rejected any further reduction of the developable area by excluding development from the Conservation Target Area as a whole. The retained restriction on built development was therefore irreconcilable with the inspector’s conclusions. Directing its deletion was a specific, proportionate and necessary correction, not an exercise of the court’s own planning judgment.
4. The direction requiring the council to adopt the corrected policy was also permissible. The council had itself proposed an order requiring adoption of whatever modification the inspector recommended and had not reserved a decision not to adopt. The order therefore gave effect to the council’s own adopted position.
5. The examination and public participation process had been fully completed. No further hearing, re-examination or sustainability appraisal was required. The amended policy remained subject to Policy ESD 11 and other safeguards protecting the Conservation Target Area and biodiversity. The requirements of the environmental assessment and public participation regimes were therefore not undermined.

• Court of Appeal (Civil Division): The appeal was dismissed. The remedial directions requiring deletion of the restriction and adoption of the corrected policy were upheld: [2016] EWCA Civ 1007.
• Administrative Court, Planning Court: Patterson J. ordered that Policy Bicester 13 be treated as not adopted, remitted it to the Secretary of State, directed an inspector to recommend deletion of the restriction, and required the council to adopt the policy in that form: [2016] EWHC 290 (Admin).