IM Properties Development Ltd v Lichfield District Council [2016] EWCA Civ 257

Case No C1/2015/2631[2016] EWCA Civ 257
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CRANSTON J)
Venue Royal Courts of JusticeDate Thursday, 25th February 2016
Strand
London, WC2
B E F O R E:
LORD JUSTICE SALES
Between
IM PROPERTIES DEVELOPMENT LTDApplicant-v-
Between
LICHFIELD DISTRICT COUNCILRespondent
(Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr A Crean QC (instructed by Shoosmiths LLP) appeared for ApplicantMr G Cannock (instructed by Lichfield DC) appeared for Respondent
J U D G M E N T (Approved)
[1]This is renewed oral application for permission to appeal in relation to the judgment of Cranston J, by which he rejected an application for judicial review of adoption of a local plan, which had been through the process of examination by an inspector, approved by the inspector and then adopted by the local authority.[2]The application for judicial review was brought by the claimant which owns land which it would maintain is suitable for development in the area of the local authority. The particular feature of the local plan which is the ground for objection to it is that, instead of incorporating the claimant's land within the plan as land designated for housing development, the plan was modified part way through the examination process in order to meet housing needs identified by the inspector, so as to bring in two other sites as designated to meet those housing needs. At the time of the examination of the local plan those two sites were within the Green Belt; but in consequence of the modifications to the local plan put forward by the local authority and adopted and incorporated into recommendations by the inspector they were to be removed from the Green Belt and designated as suitable for development for housing.[3]Mr Crean QC, who appears for the appellant on this application, urges upon me that the three grounds of appeal which were reviewed on the papers by Lewison LJ and seeks to persuade me that each of them affords a proper ground on which permission to appeal should be granted. Lewison LJ rejected the application for permission to appeal on the papers, saying this:
"Reasons: 1. Main modifications: This ground of appeal is pitched at a very high level of generality. What is actually in issue is whether the recommendation that the two additional sites be removed from Green Belt went beyond the inspector's powers. That plainly did not amount to a wholesale rewriting of the local plan. There was clearly no more than ‘a partial change’, to use the appellant's definition, in that it recommended a change to part of the local plan. 2. Exceptional circumstances: as the judge pointed out, the inspector was well aware of the need for exceptional circumstances and referred it to more than once in his report. The inspector explained at paragraph 207 why he thought that there were exceptional circumstances. This is a question of planning judgment on which the court should not interfere. 3. Unfairness: This point has now been considered twice both by Patterson J and the judge. Both have rejected it and the procedure followed by the inspector took account of Patterson J's observations. The judge's reasons for rejecting this argument are compelling."
[4]The three grounds of appeal which Mr Crean presses on me today reflect those identified and rejected by Lewison LJ. The first point is a complaint about the judge's reasoning at paragraphs 55 to 58, where the judge held, contrary to the submission of the appellant, that the modifications which were introduced into the local plan part way through the examination process, pursuant to the procedure set out in section 20 of the Planning and Compulsory Purchase Act 2004, were indeed modifications of the plan falling within the scope of that statutory provision, which allows modifications to be made to a plan part-way through the examination process.[5]Mr Crean says that he wishes to maintain an argument on appeal, both at the level of principle - in that he says the judge did not accept that the law recognised any restriction on the power of “modification” of a draft local plan, whereas one should be identified on proper interpretation of section 20 - and also in relation to the particular facts of the case: he says that if there is a restriction in principle on what can constitute a “modification” of a plan, then the changes made to the plan in this case went beyond what was permissible.[6]In my view, whatever may be the position in relation to the wider point of principle, there is no real prospect of success for the appellant in relation to what happened on the particular facts of the case. The changes to the draft plan clearly only constituted “modifications” of it, on any sensible interpretation of that term. I agree with the observations of Lewison LJ in that regard.[7]The second ground urged upon me today by Mr Crean is that the judge went wrong in that part of his judgment where he reviewed the decision of the inspector that it was appropriate to approve a local plan which would remove the two relevant sites from the Green Belt - see paragraphs 51 to 54 of the judgment. This is against the background of the need for exceptional circumstances to be shown to justify taking land out of the Green Belt.[8]Again, I do not consider that there is a real prospect of success on appeal on this ground, for the reasons given by Lewison LJ. As Lewison LJ points out, the inspector gave an explanation why he considered that there were exceptional circumstances and that was a matter of planning judgment which gives rise to no real prospect of success on appeal.[9]The third ground relied upon by Mr Crean is that he says that the process by which the local planning authority and then the inspector conducted matters was materially unfair to the appellant.[10]The background to this has been explored not just in the judgment of Cranston J below at paragraphs 39 to 50 but also in a prior judgment of Patterson J. Both judges found that the way in which matters were handled was fair. In particular, it was fair for a guillotine procedure to be introduced by the local planning authority and the inspector in relation to a date of 10th July 2013 in respect of provision of further information concerning the local plan. But in my view, more significantly than that, notwithstanding the guillotine, as Cranston J found in particular at paragraphs 45 to 47 of his judgment, the appellant was afforded a further opportunity to put before the local planning authority and inspector additional information on which it would wish to rely in the course of the examination in order to urge upon the inspector the argument that its own site was in fact a preferable site for designation for housing development than the two other sites with which it was in competition.[11]So, again in agreement with the reasons given by Lewison LJ, I do not consider there is a reasonable prospect of success on appeal on this ground either.[12]Nor do I consider that there is any other compelling reason for permission to be granted for an appeal to this court. Accordingly this application is dismissed.

Cited in 1 later judgment