IM Properties Development Ltd v Lichfield District Council

Permission to appeal will be refused where the proposed grounds have no real prospect of success and no other compelling reason justifies an appeal. Changes to a draft local plan may constitute permissible modifications even where they alter the designation of particular sites. Whether exceptional circumstances justify removing land from the Green Belt is ordinarily a matter of planning judgment. Procedural fairness is assessed in the whole context, including whether the affected party had a proper opportunity to provide information and make representations, notwithstanding a procedural guillotine.

The claimant, which owned land it considered suitable for housing, sought judicial review of the adoption of a local plan by the defendant local authority. During the examination process, the plan was modified to remove two other sites from the Green Belt and designate them for housing, rather than designate the claimant’s site. Cranston J rejected the judicial review claim. Lewison LJ refused permission to appeal on paper. The claimant renewed its application before the Court of Appeal, challenging the scope of the modifications, the finding of exceptional circumstances for Green Belt release, and the fairness of the examination process.

1. Application dismissed. There was no real prospect of success on any proposed ground and no other compelling reason for permission to appeal.
2. The changes made during the examination process were modifications of the local plan within the scope of section 20 of the Planning and Compulsory Purchase Act 2004. On the facts, designating two additional housing sites and removing them from the Green Belt was plainly a modification on any sensible interpretation of that term. The court did not need to determine the wider question whether the statutory power has an implied limit.
3. The inspector had expressly considered the need for exceptional circumstances before approving the removal of the sites from the Green Belt. That conclusion involved planning judgment. It disclosed no realistic basis for appellate intervention.
4. The procedure was not materially unfair. Although a guillotine date was imposed for further information, the claimant was given a further opportunity to submit information and argue that its own site was preferable to the competing sites. The fairness complaint therefore had no reasonable prospect of success.

• Court of Appeal (Civil Division): renewed application for permission to appeal dismissed, [2016] EWCA Civ 257.
• High Court of Justice, Queen’s Bench Division: Cranston J rejected the application for judicial review of the local plan’s adoption.
• On paper: Lewison LJ refused permission to appeal.