In Barker Mill Estates (Trustees of) v Test Valley Borough Council and another [2016] EWHC 3028 (Admin), Holgate J rejected combined challenges to an adopted Local Plan under section 113 of the Planning and Compulsory Purchase Act 2004 (“PCPA”) and an inspector’s decision under section 288 of the Town and Country Planning Act 1990, dismissing housing and commercial planning appeals on allocated industrial sites.
The claimant alleged the authority (1) under-assessed its full objectively assessed housing need (“FOAN”); (2) failed to satisfy its section 33A PCPA 2004 duty to co-operate on an affordable housing FOAN shortfall; and (3) “failed to adopt a sound plan” (allocating too little B8 land). On the appeals, it alleged the inspector (1) improperly disengaged the NPPF14 presumption in favour of sustainable development; and (2) failed to apply the “general presumption in favour” (upheld in Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin)).
Dismissing the challenges, Holgate J held:
(1) The two-step approach to FOAN was properly applied (Gallagher Homes Ltd v Solihull MBC [2014] EWCA Civ 1610 followed, Satnam Millennium Ltd v Warrington Borough Council [2015] EWHC 370 (Admin) applied).
(2) Local Plan “soundness” was a judgment call for the examining inspector. Having considered the authority’s efforts to establish whether neighbouring authorities would provide affordable housing to meet its needs, accepting it would have been pointless to make a formal request for assistance, his conclusion was neither irrational nor unlawful.
(3) A factual or policy issue affecting the “soundness” of a plan should not be raised for the first time in a section 113 challenge when it could have been raised at the examination in public stage (and there was either no justification for the failure to do so, or not one sufficient to outweigh the disadvantages of allowing a new “soundness” point to be raised after the plan’s adoption). The plan did not solely rely on allocations to meet B8 needs, providing flexibility that would not prevent B8 uses coming forward. The inspector had not been irrational.
(4) The only NPPF presumption in favour is in NPPF14 (doubting Wychavon, applying Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin). If neither element of the decision-taking limb of NPPF14 is satisfied, proposals do not benefit from it but may still be approved applying a simple (not tilted) planning balance.
The judgment includes clear messages to those involved in NPPF cases: to the secretary of state, to cease consenting to judgment without explanation; to advocates, to avoid selectively citing judicial authorities in a way that may lead inspectors and judges down the garden path; and to lawyers generally to stop formulating meritless and unnecessarily legalistic arguments on the meaning and application of the NPPF presumption.
Roy Pinnock is a partner in the planning and public law team at Dentons
