Town and country planning – Local plan – Housing supply – Appellants appealing against court order dismissing challenges to adoption by respondent local authority of part of local plan – Whether respondent preparing local plan made legal error in consideration of unmet housing need in neighbouring authority’s area – Appeals dismissed
In conjoined appeals, the appellants appealed against the order of a deputy High Court judge dismissing their applications under section 113 of the Planning and Compulsory Purchase Act 2004: [2018] EWHC 2969 (Admin). Both appellants contended that the respondent had erred in law in adopting Part 1 of the Local Plan because the inspector who carried out the examination of it under section 20 of the 2004 Act, when identifying the objectively assessed need (OAN) for housing in the borough of Waverley, took an unlawful approach to the treatment of the unmet housing need in the neighbouring borough of Woking. The appellant in the first appeal also complained that the relevant reasons in the inspector’s report were inadequate.
The crucial point, common to both appeals, concerned the inspector’s recommended main modification, which the respondent accepted, whose effect was to increase the annual housing requirement figure in Waverley by 83 dwellings per annum (1,575 dwellings over the whole plan period) to address unmet housing need in Woking.
The main question in the two appeals was whether the respondent local planning authority, when preparing its local plan, had made any legal error in its consideration of unmet housing need in the neighbouring authority’s area.
The appeal in both cases raised four issues: (i) whether the inspector’s approach to the assessment of unmet housing need in Woking was unlawful and his conclusion unreasonable; (ii) whether his assessment was vitiated by a failure to seek further information; (iii) whether he was obliged to recommend a review of the local plan; and (iv) whether his reasons were inadequate.
Held: The appeals were dismissed.
(1) The court would not revisit the relevant assessment on its merits. Responsibility for assessing housing need lay with the decision-maker, not with the court. In both processes (plan-making and development control) the decision-maker had to have in mind the relevant policy and guidance issued by the Government, in the National Planning Policy Framework (NPPF)) and the Planning Practice Guidance (PPG). To apply such policy and guidance the decision-maker had to understand it properly.
The correct interpretation of planning policy was ultimately a question for the court but statements of planning policy and guidance were not equivalent to statements of legal principle. Relevant policy and guidance on the assessment of housing need was not framed in mandatory or inflexible style. No single methodology was prescribed, and no level of precision was specified. There might be no single right answer, especially where a housing market area embraced more than one administrative area and the preparation of local plans in the boroughs concerned was asynchronous, as often it would be.
The evaluation the decision-maker had to carry out would always involve a broad exercise of reasonable planning judgment. The degree of accuracy required in establishing the full, objectively assessed needs for housing would depend on the circumstances, and would itself be a matter of planning judgment. The court would only interfere if some distinct error of law was shown.
Arguments contending what a decision-maker “should” or “could” or “might” have done in assessing housing need were unlikely to prevail. For a challenge to succeed, the applicant would always have to show that what was done was actually unlawful, not merely contrary to its own case at an inquiry or examination hearing. Otherwise, the proceedings were liable to be seen as an attempt to extend by other means a debate belonging only in that forum. It was at an inquiry or examination hearing that the parties had the opportunity to argue their case on housing need, not before the court.
In the present case, the inspector’s choice of relevant data and projections, and their use, were matters of planning judgment. It was outside the inspector’s remit for him to recalculate Woking’s OAN. The inspector was seeking to establish the OAN for Waverley for its local plan to be sound, which was a significantly different exercise. The inspector’s assessment fell comfortably within the scope of a reasonable planning judgment. The appellants had failed to demonstrate any error of law in the inspector’s approach, or that his conclusion was unreasonable.
(2) The inspector’s assessment was not vitiated by a failure to seek further information. The inspector was not required to call for more information to resolve the housing issue. Normally under the relevant policies of the NPPF, local planning authorities for housing market areas straddling two or more administrative areas were expected to prepare local plans for their own areas separately, even if that entailed one or more of them having to plan for some or all of the unmet housing need in another’s area on evidence less complete or up-to-date than might be available for the assessment of housing needs in their own area. That was what happened here.
(3) The inspector was not obliged to recommend an early review of the plan. Under section 17(6) of the 2004 Act, a local planning authority had to keep its local development documents under review, and there was now a requirement in the Town and Country Planning (Local Planning) (England) Regulations 2012 for a local plan to be reviewed every five years. However, it did not compel inspectors to take it upon themselves to recommend such a review. In this case it was not unreasonable for the inspector to leave the timing of the first review to the respondent, under its statutory obligation.
(4) The inspector’s reasoning was clear, adequate and intelligible. Nothing that ought to be there was left out. Nothing was obscure. The appellants disagreed with the outcome of the inspector’s assessment but they could not say that the reasons he gave left them unable to see why he concluded as he did.
Ned Westaway (instructed by Richard Buxton Solicitors) appeared for the appellant in the first appeal; Wayne Beglan and Asitha Ranatunga (instructed by Waverley Borough Council) appeared for the respondent; the interested parties did not appear and were not represented; Paul Stinchcombe QC and Richard Wald (instructed by Richard Buxton Solicitors) appeared for the appellant in the second appeal; Wayne Beglan and Asitha Ranatunga (instructed by Waverley Borough Council) appeared for the first respondent; the second respondent and the interested party did not appear and were not represented.
Eileen O’Grady, barrister
