Examining Local Plan reasons

The Planning Court has considered the approach taken by the Inspectors' guidelines to using short form reasoning when reporting on the soundness of development plans. William Upton analyses the outcome.

The very short reports that Inspectors produce when making their recommendations on the soundness of a development plan have often left objectors wondering how their points have been addressed. But the use of short form reasoning is in the nature of the Inspector’s examination role, as recently confirmed by the Planning Court in Cooper Estates Strategic Land Limited v Royal Tunbridge Wells Borough Council [2017] EWHC 224 (Admin).

Tunbridge Wells BC were facing a challenge to their adoption of their Site Allocations Local Plan, from developers with a particular interest in housing for the elderly (especially C2 housing). Cooper Estates were promoting the removal of a site from the Green Belt, and either its allocation for sheltered accommodation or, at least, its inclusion in the rural fringe (a long term reserve of safeguarded land).

The Inspector had reported in the normal manner, producing an 80-paragraph report dealing with the legal compliance and soundness of the 140-page Site Allocations Local Plan produced by the council. As part of his examination of the soundness of the plan, he had held some eight days of hearings and the document library extended to over 400 documents.

Mr Justice Ouseley has provided very helpful analysis of the examining Inspector's duties, and he upheld the approach taken by the Planning Inspectorates’ guidelines “Procedural Practice in the Examination of Local Plans”. The public examination of a plan is not an Inquiry into objections raised by individual parties. It is structured around the issues which the Inspector has identified as crucial for his judgment on the soundness of the plan. It alerts parties to the Inspector’s proactive and inquisitorial role, and the representations do not dictate the structure or focus of the examination. If contentions do not assist him to reach a judgment on the soundness of the plan, he will not spend time at the hearings on them, and the hearings themselves are only part of his examination.

The judge also made some pertinent comments about the approach that should be taken to changes in the evidence. He makes the sensible point that plans would never get adopted if they had to constantly react to new evidence. The plan-making process cannot always in all respects catch up with the latest movements, because the process of making even a single plan would never end: finalise and review is a perfectly lawful and sensible approach. As he said, “The plates underneath the planner’s feet never stop moving.”

He also confirmed that the Site Allocations plan did not have to reassess the housing need. The soundness of the plan document had to be judged by reference to its scope, and what it set out to do. There was no error of approach in an Inspector concluding that a plan was sound rather than expecting all DPDs “to provide a seamless, comprehensive and continuously up-to-date palette of planning policies and proposals.” (applying Oxted Residential Ltd v Tandridge DC [2016] EWCA Civ 414 - the Tandridge case). Indeed, such an approach would run counter to the aim of adopting local plans in timely fashion, because, in his words, each would have to go back to square one for an assessment of needs.

When it came to considering the duty to give reasons, contained in the Act, Ouseley J cautioned against the unqualified application of the authorities dealing with reasons on planning appeals, notably the oft-cited principles in South Bucks DC v Porter (No.2) [2004]. The Inspector’s duty to give reasons for his recommendations is not focused on how he has dealt with the participants’ objections. The recommendations relate to why it was reasonable to conclude that the plan was sound and compliant with policy and legal requirements. He is not obliged to go through each participant’s principal points and say how he has resolved them, with reasons. That has never been required of such examinations, and it would be a novel and major burden to the process. He has to deal with what he regards as the major issues relevant to soundness, legal compliance and policy consistency. In words that may well chill many a fellow barrister’s heart, he noted that a lengthy contribution may show nothing of significance. The Inspector cannot be required, as a result of a comment or point that has been raised in argument, especially on an inquisitorial basis, to treat the point as one which required a specific comment in his report. The court did accept, of course, that the reasons must not create substantial and genuine doubt as to whether the inspector has made an error of public law.

The Claim was rejected. The Inspector is not required to reach a view on which was the preferable approach, so long as the approach adopted is sound. The assessment of “soundness” requires, NPPF [182], an assessment of whether the plan is “positively prepared, justified, effective and consistent with national policy.” This undeniably involves a planning judgment, and the merits of the planning issues were "very much for the planning judgment of the inspector." The inspector’s decision needed to be read in the context that: "He heard the conflicting views of Cooper Estates and the Council, heard and read what evidence the parties brought to bear on the point, and reached a wholly unassailable planning judgment, that the SALP was sound in the approach it adopted." The inspector had not failed in his duty to give reasons for the recommendation he made to adopt the plan subject to modifications.

This case provides a welcome clarification of the different role that the Inspector is carrying out an examination of a draft development plan under the Planning and Compulsory Purchase Act 2004. Ouseley J’s views on the duty to give reasons, in making recommendations for adopting a local plan, should be unaffected by the Court of Appeal judgment in Oakley v South Cambs DC [2017] EWCA Civ 71 regarding the common law duty on the local planning authority’s decision to grant planning permission. Given that there are still so many local plans that need to be adopted across the country, the task ahead is immense enough as it is without the need for over-elaborate reporting duties.

William Upton is a barrister at 6 Pump Court, Temple, London and has advised and assisted many Councils on adopting their development plans under the Planning and Compulsory Purchase Act 2004. He appeared for the Council in the Planning Court in this case. William can be contacted on 020 7797 8400 or This email address is being protected from spambots. You need JavaScript enabled to view it..