Challenging a local plan under section 113

Section 113 of the Planning and Compulsory Purchase Act 2004 is the only way to challenge an adopted local plan in court, and the window is six weeks from adoption. Miss it and the plan cannot be questioned in any legal proceedings, however flawed the process was. That exclusivity is the point of the section: Parliament wanted plans to become certain quickly, so the price of certainty is a very short door.

Six weeks is not six weeks to decide. It is six weeks to instruct, draft and file.

What section 113 allows

The section applies to development plan documents and certain other strategy documents, and it says they must not be questioned in legal proceedings except as the section provides. That bars judicial review of an adopted plan by the ordinary route and channels everything through this one application to the High Court.

Two grounds are available. Either the document is not within the appropriate power, meaning the authority had no power to adopt what it adopted, or a procedural requirement has not been complied with. In practice those two headings absorb most public law arguments: failure of the duty to cooperate, defects in strategic environmental assessment or habitats regulations assessment, inadequate consultation, failure to give adequate reasons, taking an irrelevant consideration into account, or a conclusion no reasonable authority could have reached on the evidence.

A permission stage applies, so the claim has to clear a filter before it proceeds to a full hearing. That filter weeds out challenges that are really disagreements with the inspector's planning judgement dressed as law.

The six week window and how it runs

The period starts with the relevant date, which for a development plan document is the date of adoption, not the date of the examination report and not the date the decision appears on the council's website.

Practical points that catch people out:

• The resolution to adopt and the adoption itself may be days apart. Work from the adoption, and confirm the date with the authority in writing.
• The period is not extendable. Courts have no discretion to let a late claim in, however good the reasons.
• Pre-action correspondence does not stop the clock. Send it, but file within the period regardless.
• The claim has to be properly constituted when filed, with grounds and evidence, not a placeholder.

Anyone contemplating a challenge should have been watching the examination. The grounds almost always come from the examination record: what was consulted on, what the inspector said about main modifications, what evidence was and was not before them. Getting that material together after adoption wastes a fortnight of the six, which is why keeping a running file during examination, in the same way you would with the officer's case file on an application, pays for itself.

Grounds that succeed, and grounds that do not

The successful challenges tend to be procedural and specific.

The courts are consistent that the merits of a plan are for the inspector and the authority. Dress a merits argument as a reasons challenge and it fails at the permission stage.

Partial quashing and remittal

The remedy is more flexible than people assume. The court can quash the whole document, or quash it in part, and it can remit the document or part of it back to the authority or the inspector with directions about the steps to be taken.

That matters commercially. A successful challenge to one allocation does not usually bring down the plan. The court quashes that policy or that allocation, the rest of the plan remains part of the development plan, and the authority reworks the quashed part through whatever procedure the court directs. The court can also suspend the operation of the document, or part of it, pending the remitted steps.

For a landowner whose site was rejected, partial quashing and remittal is the realistic prize, and it means a further round of examination work rather than an immediate allocation.

Effect on applications in the meantime

Until a court orders otherwise, the adopted plan is the development plan and applications are determined in accordance with it unless material considerations indicate otherwise. A pending challenge does not suspend anything by itself.

What it does do is put the challenged policy into play. A decision maker can be told that the policy is under challenge, and where the challenge is strong that may affect the weight given to it in a particular decision. Officers will usually be cautious about relying heavily on a policy that may be quashed, and committee reports sometimes say so. None of that amounts to a presumption, and arguing that a policy should be disregarded because somebody has filed a claim will not get far.

Where the challenged policy is central to a site, the practical question is whether to apply now and argue the weight, or wait. That is the same calculation that runs through appealing non-determination or waiting, and the answer usually turns on how long the court timetable is against the applicant's own programme.

Who brings these claims, and what they cost

Four groups, roughly. Developers and promoters whose sites were not allocated. Landowners affected by a designation such as Local Green Space or a settlement boundary. Neighbouring authorities unhappy about cross-boundary provision. And residents' groups or parish councils objecting to an allocation.

Costs are the deciding factor for the last group. Environmental claims can attract costs protection with caps on the amount a losing claimant pays, and a claimant who qualifies files the relevant schedule with the claim. The caps are set in the court rules and are revised, so check the current figures rather than a remembered number, and take advice on whether the claim qualifies before relying on the protection.

Practical alternatives to litigation

Most people who are thinking about section 113 would be better served by something else.

1. Engage properly at examination, including at the main modifications consultation, which is the last point at which the document can be changed without a court.
2. Apply for planning permission and argue the weight of the policy under the statutory duty to determine in accordance with the development plan unless material considerations indicate otherwise, supported by a Planning Statement that engages the policy directly rather than ignoring it.
3. Challenge the application of the policy in a specific decision through the appeal system, and then through the statutory review route for that decision if necessary.
4. Promote the site through the next plan review or through a neighbourhood plan, depending on the geography.
5. Where the issue is a factual error on a policies map, ask the authority to correct it, which some authorities will do without a formal process.

The honest position is that section 113 claims are rare and succeed less often than they are threatened. They are worth bringing where a specific procedural failure caused identifiable prejudice and the commercial stake justifies the cost. They are not a second examination.

If you are preparing an application against a plan policy you disagree with, enter the postcode on PlanScope to see which supporting documents the site is likely to need.

This is general guidance, not legal advice. Statutory challenges are subject to strict time limits and should be taken on specialist legal advice. Check the position with a solicitor or counsel before relying on anything here. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.