Lochailort Investments Limited v Somerset Council

When a local plan is remitted after an error of law, the court may tailor relief to the error, provided it does not usurp the planning judgment of the local planning authority or Inspector. An adopted policies map may be corrected by resolution to reflect the consequences of the court’s order, including restoring a boundary which had been altered only to accommodate an unlawful allocation. Land does not become “white land” merely because an allocation is remitted. That result depends on the terms of the order and the designations removed. A temporary restoration of the previous development limit may be lawful where it removes an advantage that the unlawful allocation created and leaves the site’s future allocation to the proper plan-modification process.

The claim concerned the legality of Somerset Council’s alteration of the adopted policies map accompanying the Mendip District Local Plan 2006–2029 Part II: Sites and Policies. In an earlier decision, the court allowed a statutory review under section 113 of the Planning and Compulsory Purchase Act 2004 and remitted five housing allocations for reconsideration because the search for sites had unlawfully been confined to the north-east of the district and reasonable alternatives had not been considered.

After deleting the remitted allocations, the Council restored the development limits of Norton St Philip to their pre-allocation position. The developer argued that the site should instead be shown as neither within nor outside the development limits, pending reconsideration. The central issue was whether the Council had acted unlawfully by restoring the previous boundary before completion of the modification and examination process.

1. The judicial review claim was dismissed. The Council’s alteration of the adopted policies map was lawful and consistent with the order remitting the unlawful allocation.

2. The court’s powers under section 113 of the Planning and Compulsory Purchase Act 2004 are broad and flexible. They enable relief to be fitted to the particular error, the stage reached in the plan-making process, the extent of the taint, the remedial steps required and the interim status of the plan. The court must not determine matters reserved to the planning authority or Inspector.

3. An adopted policies map is a local development document but does not form part of the local plan itself. Under regulation 9 of the Town and Country Planning (Local Planning) (England) Regulations 2012, it illustrates geographically the application of policies. It may therefore define the geographical scope of a policy even where the plan text does not expressly describe the corresponding boundary.

4. The effect of remittal is not automatically to convert the affected land into white land. That depends on which designations have been quashed or removed. The earlier decision in Cummings v Weymouth and Portland Borough Council was a consequence of the particular quashing order made there and established no general rule.

5. The development-limit extension had been made solely to accommodate the unlawful NSP1 allocation. Once that allocation was treated as not adopted, restoring the boundary to its earlier position removed the consequences of the unlawful decision. Leaving the extension in place would preserve an unjustified benefit, while a white-land notation would avoid the restraint policy in Core Policy 1 and confer a preferential planning status.

6. The Council could correct the map by resolution to give effect to the court’s order. Any future decision whether to allocate the site, or to retain it outside the development limits, remained for consideration through the required modification, consultation and examination process. The altered map was a rational response within the Council’s powers.

First-instance judicial review and related application concerning the implementation of the court’s earlier statutory-review order. No appeal was stated in the judgment.