Town and country planning – Planning policy – Housing – Respondents adopting local plan – Respondents also adopting charging schedule for community infrastructure levy pursuant to Part 11 of Planning Act 2008 – Whether those documents unlawful as being based on outdated core strategy – Whether respondents unlawfully failing to have regard to full “objectively assessed” housing needs pursuant to para 47 of National Planning Policy Framework – Appeal dismissed
In July 2014, the respondent council adopted part 2 of their local plan, setting out their detailed planning policies and, at the same time, adopted a charging schedule for the community infrastructure levy (CIL) pursuant to Part 11 of the Planning Act 2008. The local plan was adopted following an examination before an inspector appointed by the secretary of state; the inspector concluded that the plan, with proposed modifications, was sound within section 20(5) of the Planning and Compulsory Act 2004, and met the criteria for soundness in the National Planning Policy Framework (NPPF).
The appellant brought proceedings under section 113 of the Planning and Compulsory Act 2004 to challenge part 2 of the local plan and the CIL charging strategy. It contended that those documents were not lawful since they had been adopted in support of a 2008 core strategy which was now out of date, having been prepared under the old national planning policy for housing land supply set out in PPS3, which was superseded in March 2012 by the National Planning Policy Framework (NPPF). They submitted that the inspector and the respondents could not lawfully find the part 2 of the local plan to be sound under the relevant statutory requirements since it was based on outdated housing requirements which did not reflect the full “objectively assessed” housing needs of the district as required by para 47 of the NPPF; likewise, the CIL charging schedule was unlawful since it was based on the development requirements provided for in the outdated core strategy. Those contentions were rejected in the court below: see [2015] EWHC 793 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) Challenges to the adoption of a development plan document by a local planning authority would seldom succeed. The task of testing the soundness of a development plan document was not a task for the court but lay squarely within the realm of planning judgment, exercised within the relevant statutory scheme and in the light of relevant policy and guidance. The role of the court was to review the exercise of that judgment on traditional public law grounds. The question was whether the decision of the local planning authority to adopt the plan under challenge, following the recommendation of the inspector who conducted the examination, was perverse in the sense of being beyond the range of reasonable judgment. Provided the inspector and the local planning authority reached a conclusion on soundness that was not irrational, their decision could not be questioned in the courts: Grand Union Investments Ltd v Dacorum Borough Council [2014] EWHC 1894 (Admin) and Barratt Developments plc v Wakefield Metropolitan District Council [2010] EWCA Civ 897; [2010] PLSCS 216 applied.
(2) A development plan could comprise several development plan documents. In preparing such a document, the local planning authority had to have regard to any other development plan document already adopted, such as a core strategy, and the inspector conducting the examination had to ensure that this had been done: see section 19(2)(h) and section 20(5)(a) of the 2004 Act. There was nothing in the statutory scheme to prevent the adoption of a development plan document that made allocations consistent with an adopted core strategy, simply because the core strategy might require revision or amendment to bring it into line with national policy.
Further, the relevant policies in the NPPF, properly understood, did not require every development plan document within its broad definition of a “local plan” to fulfil all the requirements described in para 47 of the NPPF. Where one of the necessary purposes of a particular development plan document was to identify the level of housing need that had to be met in the relevant area, then the provisions of the NPPF bearing on that purpose, including paras 158 and 159 as well as paragraph 47, would be engaged. However, that did not mean that a development plan document that was dealing with the allocation of sites for an amount of housing provision which was already agreed to be necessary had also to address the question of whether further housing provision needed to be made. Any such requirement would be difficult to reconcile with the NPPF’s encouragement for the timely preparation and adoption of local plans, and was also unnecessary in light of the statutory requirement, under section 17(6) of the 2004 Act, for an authority to keep their local development documents under review. Accordingly, the policy in para 47 of the NPPF could not be used as a means of compelling a full, objective assessment of housing need prior to the adoption of a development plan document that made allocations for housing need that had already been established: Gladman Developments Ltd v Wokingham Borough Council [2014] EWHC 2320 (Admin), R (on the application of Gladman Developments Ltd) v Aylesbury Vale District Council [2014] EWHC 4323 (Admin) and Gallagher Estates Ltd v Solihull Metropolitan Borough Council [2014] EWCA Civ 1610; [2014] PLSCS 360 applied.
(3) Applying those principles, there was no error of law in the inspector’s conclusion that, with the proposed main modifications, part 2 of the local plan was sound. Neither his analysis and recommendation nor the respondents’ decision to adopt part 2 of the local plan could be characterised as irrational or otherwise unlawful. It was important to focus on the purpose of the development plan document in question. The purpose of part 2 of the local plan was to support the core strategy; it was not, and could not have been, to substitute for the policies of the core strategy an amended or new strategy. Its explicit purpose was to provide a set of detailed planning policies to be applied locally in the assessment and determination of planning applications over the plan period. In preparing it, the respondents were not undertaking the work indicated by paras 47 and 159 of the NPPF. They did not have to carry out an assessment of the housing needs that would have to be met in their area to satisfy the requirements of national policy, as they now existed, in para 47 of the NPPF. Equally, inspector who conducted the examination was not required to scrutinize the respondents’ performance in discharging those requirements of national planning policy.
(4) Nor was the inspector obliged to consider whether particular policies in part 2 of the local plan were “policies for supply of housing” within para 49 of the NPPF, so far as it required that such policies should not be considered up-to-date if the local planning authority could not demonstrate a five-year supply of deliverable housing sites. Whether a particular policy of the core strategy, or of part 2 of the local plan, fell within the scope of para 49 was a question that would arise in the making of a decision on an application for planning permission for housing development. The status of the policies in part 2 of the local plan was not a matter for the inspector, or the respondents, to resolve in the plan-making process and was not a question bearing on the soundness of that document or otherwise within the ambit of the matters that the inspector had to consider under section 20(5) of the 2004 Act: Hopkins Homes Ltd v Secretary of State for Communities and Local Government; Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 168; [2016] PLSCS 90 considered.
(5) In a challenge to the adoption of a CIL charging schedule, a claimant could not invite the court to interfere with the examiner’s judgment on matters of valuation or planning merit. The challenge could only be made on public law grounds. While, under section 211(7A) of the 2008 Act, the charging schedule had to be informed by “appropriate available evidence”, the charging authority were free to judge for themselves what constituted such evidence. They were required to exercise their own judgment in striking the “appropriate balance” and the range of reasonable judgment was wide. Further, there was no statutory obstacle to the adoption of a CIL charging schedule when a relevant development plan document was, or might be considered, out-of-date in the light of subsequently issued national policy or guidance. Far from it being necessarily unreasonable for a charging authority to adopt a CIL charging schedule in such circumstances, that would often be the pragmatic course to take.
In the instant case, there was no unlawfulness in the adoption of the CIL charging schedule. It was not unreasonable for the examiner to accept the respondents’ argument that, although a review of the core strategy was now in prospect, it would be logical and sensible in the meantime to have a CIL charging schedule in place to deal with the development planned in the core strategy as adopted, and to revise the CIL charging schedule in the light of the review, or sooner, under the statutory power to do so in section 211(9) of the 2008 Act.
Jonathan Clay (instructed by DMH Stallard LLP, of Crawley) appeared for the appellant; Rhodri Price Lewis QC (instructed by the legal department of Tandridge District Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript: Oxted Residential Ltd v Tandridge District Council
