Town and country planning – Planning policy – Local plan – Local authority adopting local plan policy on site allocations and development management following report of inspector – Claimants applying for statutory review – Whether inspector failing to consider whether “sound” to restrict scope of policy – Whether inspector failing to take into account material considerations – Whether inspector’s conclusion on prospect of varying or discharging restrictive covenant irrational – Application dismissed
The claimants owned and occupied a house with land at Upper Sattenham, Station Lane, Milford, Godalming. The property had the benefit of a restrictive covenant which included 27 acres of open land to the north of the property, which was formerly part of Milford Golf Course. The covenant restricted the development of the golf course site to one detached house (plus ancillary accommodation) per acre.
Under Part 1 of its local plan (LLP1), the first defendant local planning authority allocated the golf course site for residential development of 180 dwellings. It subsequently granted planning permission for the construction of 190 dwellings. The second defendant appointed an inspector to examine LPP2 (concerning site allocations and development management policies) pursuant to section 20 of the Planning and Compulsory Purchase Act 2004. Following the inspector’s report, the first defendant adopted LPP2 as modified.
The claimants sought a statutory review of that decision, pursuant to section 113 of the 2004 Act contending that: (i) the inspector unlawfully failed to consider whether it was sound to restrict the scope of LPP2 to be a “daughter document” to LPP1. The scope of LPP2 had to be considered by the statutory framework and/or because it was so obviously material to the inspector’s statutory task; (ii) even if the inspector was not required to consider the scope of LPP2, his approach to the examination of LPP2 was unlawful because he misinterpreted LPP1, and failed to take into account material considerations required by the statutory framework and/or because they were so obviously material to the soundness of LPP2; and (iii) the inspector’s conclusion that there was a reasonable prospect of varying or discharging the restrictive covenant over the golf course site was irrational.
Held: The application was dismissed.
(1) The inspector had properly considered and reached conclusions on the matters set out in grounds of challenge, in particular, the status and scope of LPP2, and whether it should demonstrate that the first defendant’s five-year housing land supply was met and ensure the delivery of the housing requirement before the end of the plan period. Those matters were considered at length in the examination and the inspector adequately addressed them in the report, bearing in mind the standard of reasons required: CPRE Surrey v Waverley Borough Council [2019] EWCA Civ 1826; [2019] PLSCS 208 applied.
(2) The inspector correctly applied the statutory requirements for an examination which were set out in section 20(5)(a) of the 2004 Act, including the requirements of section 19 of the 2004 Act and the and the Town and Country Planning (Local Planning) (England) Regulations 2012.
He also determined whether LPP2 was sound, as required by section 20(5)(b). Testing the soundness of a plan was not a task for the court. It lay within the realm of planning judgment exercised under the relevant statutory scheme in the light of relevant policy and guidance and was essentially a practical assessment: Blyth Valley Borough Council v Persimmon Homes (North East) Ltd [2008] EWCA Civ 861; [2008] PLSCS 225 considered.
The inspector did not treat the scope of LPP2 as “forbidden territory” which he should not consider. In principle, an inspector might consider issues of scope under section 20(5)(a)-(b), although challenges to scope would rarely succeed: R (on the application of Gladman Developments Ltd) v Aylesbury Vale District Council [2014] EWHC 4323 (Admin) and Oxted Residential Ltd v Tandridge District Council [2016] EWCA Civ 414; [2016] PLSCS 124 considered.
(3) The claimants had subjected the inspector’s report to the type of “hypercritical scrutiny” which was deplored by Lindblom LJ in St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; [2017] PLSCS 196; [2018] PTSR 746.
On close analysis, the inspector’s report did not disclose any error of law. This was a case in which the claimants and the potential developers were seeking to re-run the submissions they made at the examination, and which the inspector rejected in his report. In reaching his conclusions, the inspector made a series of planning judgments which could not be challenged on an application for statutory review under section 113 of the 2004 Act.
The claimants’ analysis of the inspector’s reasoning did not take into account the entirety of the evidence before the inspector which he could be assumed to have taken into account when reaching his conclusion. He was not required to reference every aspect of the evidence in the report to meet the required standard of reasons: South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953 and CPRE Surrey v Waverley Borough Council considered.
(4) The inspector’s starting point was the allocation of the golf course site for 180 dwellings in LPP1, despite the existence of the restrictive covenant.
The inspector was entitled to assess the likelihood of an application to discharge the restrictive covenant since, in the absence of any application, the development would not proceed. The inspector’s report acknowledged that no one could be certain, at that time, how a future application to discharge the restrictive covenant would be determined. It was appropriate for the inspector to acknowledge that obvious fact, before proceeding to express his view on the prospects of success.
In considering the prospects of success, it was highly likely that the inspector took into account all the evidence and submissions before him. In deciding whether the site was developable, the inspector had to form an opinion as to whether there was a reasonable prospect that it would be available and could be viably developed within the plan period. It could be assumed that, in forming his opinion, he had regard to the evidence and submissions before him. In concluding that the golf course site was developable, he made an exercise of planning judgment, which was open to him on the evidence. The high threshold for an irrationality challenge (as defined in R (Law Society) v Lord Chancellor [2019] 1 WLR 1649) had not been reached.
Charles Banner KC and Matthew Henderson (instructed by Penningtons Manches Cooper LLP) appeared for the claimants; Wayne Beglan and Jack Barber (instructed by Waverley Borough Council Legal Services) appeared for the first defendant; Jack Smyth (instructed by the Government Legal Department) appeared for the second defendant.
Eileen O’Grady, barrister
Click here to read a transcript of House and another v Waverley Borough Council and another