CK Properties (Theydon Bois) Ltd, R (On the Application Of) v Epping Forest District Council

A pre-submission local plan is not a relevant document whose validity is exclusively challengeable under Planning and Compulsory Purchase Act 2004, section 113. Judicial review remains available to challenge antecedent preparation decisions before adoption. Regulation 19 publication is not consultation. Its purpose is to enable representations for independent examination under regulation 20. A missing supporting document may breach regulation 19, but relief is discretionary where the claimant can participate in the examination process and the omission causes no real prejudice. Whether a plan is sound, including whether it is justified by proportionate evidence and reasonable alternatives, is principally for the independent inspector.

The claimant, a development company, challenged the defendant local planning authority’s decision to approve and publish a submission-version local plan and to proceed towards submission for independent examination. The claimant’s proposed residential site had appeared in an earlier draft but was omitted from the later plan because of concerns about recreational pressure and air-quality effects on Epping Forest.

The claimant alleged breaches of the adopted Statement of Community Involvement, the statutory publication requirements, and procedural fairness. Appendix B to the Site Selection Report was unavailable when the Council made its decision and throughout the six-week regulation 19 publicity period. The central issues were whether section 113 excluded judicial review, whether the Council had acted unlawfully, and whether any breach justified quashing the decision.

1. Jurisdiction. The claim was not excluded by section 113(2) of the Planning and Compulsory Purchase Act 2004. Read with sections 17(8)(a) and 37(3), section 113 concerns an adopted development plan document. The present challenge was to antecedent steps taken in preparation for submission, not to an adopted plan itself. The analysis in The Manydown Company Ltd v Basingstoke and Deane Borough Council [2012] EWHC 977 (Admin) supported that conclusion, and I.M. Properties Development Ltd v Lichfield District Council [2014] EWHC 2440 (Admin) was consistent with it.

2. Evidence and soundness. The Council had sufficient information to decide whether the draft plan was ready for examination. Members had been briefed on the site-selection process, knew why the claimant’s site had been omitted, and debated the issue before voting. The question whether the plan was sound, including whether it was the most appropriate strategy when assessed against reasonable alternatives, was for the inspector at independent examination. The distinction between plan preparation and examination stated in Samuel Smith Old Brewery (Tadcaster) v Selby DC [2015] EWCA Civ 1107 was applied.

3. Publication and participation. Appendix B was a proposed submission document under regulation 17 and its unavailability during the regulation 19 period breached regulation 19. However, regulation 19 publication is not a consultation exercise. It enables representations under regulation 20 so that interested persons may participate in the examination process. The claimant had made representations and would have an opportunity to address the inspector. The inspector also had wide powers to remedy procedural shortcomings or unfairness.

4. Relief. The alleged breaches of the Statement of Community Involvement and procedural fairness were not established. In any event, it was highly likely that the Council would have reached the same decision if Appendix B had been available. The independent examination provided an adequate alternative remedy, and quashing would have been unnecessary and disproportionate under section 31(2A) of the Senior Courts Act 1981. The claim was dismissed.

First-instance judicial review proceedings. The claim was dismissed.