Jopling v Richmond-Upon-Thames London Borough Council & Anor

A consultation on proposed main modifications to a local plan must be fair and effective. It must clearly identify the substance of the modifications, especially where they may remove an existing planning designation. A procedural defect is material where affected persons lacked a proper opportunity to make representations and their interests were substantially prejudiced. Relief is available where a different outcome is reasonably possible; the applicant need not prove that the outcome would probably have changed. The same requirements apply to related sustainability-appraisal and environmental consultations.

The claimant challenged the Council’s adoption of a local plan under section 113 of the Planning and Compulsory Purchase Act 2004. The plan had originally designated Udney Park Playing Fields as Local Green Space. During the examination, the Inspector’s proposed main modifications obliquely altered the relevant policy and ultimately removed that designation, but the consultation documents did not make the proposed change clear.

The claimant argued that the consultation, the related sustainability appraisal consultation and the consultation required by the SEA Directive were procedurally defective. The interested party argued that removal of the designation could not be a main modification, or alternatively that the documents gave a fair opportunity to respond and that no substantial prejudice had been shown.

1. The claim succeeded. The court held that the proposed removal of the Local Green Space designation was, in substance, a main modification. Although the designation appeared on the Policies Map, it formed part of the local plan’s planning policies. The Inspector therefore had power, and was required, to address it through the main-modification process.
2. The proposed modification was materially unclear. The wording suggested that Local Green Space designations were prospective, but did not objectively disclose that the existing designation of the site was to be removed. The stated reason for the modification did not cure that lack of clarity. The confusion was demonstrated by the claimant, the interested party and the Council each understanding the position differently.
3. A consultation of this kind must be fair and effective. That requirement accords with the dicta of Lord Woolf MR in R v NE Devon Health Authority Ex p Coughlan [2001] QB 213 at paragraph 108, and was reinforced by the Planning Inspectorate guidance. The affected supporters of the designation had not received a proper opportunity to submit evidence and argument.
4. The procedural failure substantially prejudiced the claimant’s interests for the purposes of section 113(6)(b) of the Planning and Compulsory Purchase Act 2004. Further evidence concerning the site’s history, sporting use, community significance and ecology could have been submitted. It was reasonably conceivable that the Inspector’s conclusion might have been different. It was unnecessary to show that a different result was more likely than not.
5. The sustainability-appraisal consultation was also defective because the Council proceeded on the mistaken basis that the modification did not include de-designation. Ground 3 succeeded as well: the same defect breached Article 6(2) of the SEA Directive and regulations 13(2)(d) and 13(3) of the Environmental Assessment of Plans and Programmes Regulations 2004. The precise relief was reserved for a further hearing.

First-instance planning statutory review. The judgment records no earlier judicial decision in the same proceedings. The court found Grounds 1, 2 and 3 made out and reserved the precise form and scope of relief for a further hearing.