Cornerstone Planning

Planning disputes and scrutiny of inspectors' reports

The High Court has upheld Waverley Borough Council’s decision to adopt Part 2 of its Local Plan as lawful. Wayne Beglan and Jack Barber explain why.

On 28 November 2023, Mrs Justice Lang DBE handed down judgment in Timothy James House and Isobel House v Waverley B.C. and SSLUHC [2023] EWHC 3011 (Admin).

Background

The Claimants owned a property with the benefit of a restrictive covenant over land which includes within its scope a site proposed by the Council for development comprising 27 acres of open land which was formerly part of Milford Golf Course. The effect of the restrictive covenant is to restrict the development of the Golf Course Site to one detached house per acre.

Under Part 1 of its Local Plan (LPP1), the Council allocated the Golf Course site for residential development and subsequently granted planning permission for the construction of 190 dwellings.

The Statutory Challenge

The Claimants sought a statutory review, pursuant to s.113 PCPA 2004, of the decision of the Council to adopt the Waverley Borough Local Plan Part 2: Site Allocations and Development Management Policies (“LPP2”), on 21 March 2023. The Council took that decision after an Inspector appointed by the SSLUHC had examined LPP2 pursuant to s.20 PCPA 2004. The Claimants had made extensive representations at that examination. In the High Court, the Claimants advanced three grounds of challenge:

  • Ground 1: The Inspector unlawfully failed to consider whether it was sound to restrict the scope of LPP2 to be a “daughter document” to the Waverley Borough Local Plan Part 1: Strategy Policies and Sites (“LPP1”). The Inspector was required to consider the scope of LPP2 by the statutory framework and/or because it was so obviously material to the Inspector’s statutory task.
  • Ground 2: Even if the Inspector was not required to consider the scope of LPP2, nevertheless his approach to the examination of LPP2 was unlawful because he misinterpreted LPP1, and failed to take into account material considerations which were required to be taken into account by the statutory framework and/or because they were so obviously material to the soundness of LPP2.
  • Ground 3: The Inspector’s conclusion that there was a reasonable prospect of varying or discharging the restrictive covenant over the Golf Course Site was irrational.

The challenge was heard across two days on 7-8 November 2023.

The Judgment

Mrs Justice Lang DBE’s judgment summarises the statutory scheme (at [20]-[27]), the policy framework (at [28]-[35]) and the approach to challenges to Inspectors’ decisions (at [36]-[40]).

Grounds 1 and 2

On Grounds 1 and 2, Mrs Justice Lang DBE concluded (at [86]-[89]) that:

  • The Inspector had properly considered and reached conclusions on the matters set out in those grounds, in particular, the status and scope of LPP2, and whether it should demonstrate that the Council’s 5-year housing land supply was met and ensure the delivery of the housing requirement before the end of the plan period.
  • In principle, an Inspector may consider issues of scope under section 20(5)(a) – (b) PCPA 2004, although the analysis in Gladman Developments Ltd. v Wokingham Borough Council [2014] EWHC 2320 (Admin) and Oxted Residential Ltd v Tandridge District Council [2016] EWCA Civ 414 indicates that challenges to scope will rarely succeed.
  • 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 [2018] PTSR 746, at [7].

Ground 3

On Ground 3, the Claimants had contended the Inspector’s conclusion that there was a reasonable prospect of success in an application to discharge or vary the restrictive covenant under s.84 Law of Property Act 1925 was irrational in circumstances where the Claimants had submitted a legal opinion which concluded that there was at least a 70% chance of the claimants defeating such an application (see [93]-[96]).

On Ground 3, Mrs Justice Lang concluded (at [101]-[110]) that:

  • It was rational for the Inspector to conclude that the Golf Course Site was developable within the plan period.
  • The Claimants’ analysis of the Inspector’s reasoning did not take into account the entirety of the evidence before the Inspector.
  • In concluding the Golf Course Site was developable, the Inspector had made an exercise of planning judgment, which was open to him on the evidence.

Accordingly, the claim for statutory review was dismissed. The Claimants have not sought permission to appeal.

Key points

  • The case provides another example of the court discouraging “hypercritical scrutiny” of Inspectors’ Reports and underlines that Claimants should not attempt to re-run submissions made at an examination and rejected by an Inspector.
  • In principle, an Inspector may consider issues of scope under section 20(5)(a) – (b) PCPA 2004, although the caselaw indicates that challenges to the scope of a document will rarely succeed.
  • In defending statutory challenges, Councils should consider how to make use of evidence from the examination process, such as Initial Questions, MIQs and responses, and transcripts from proceedings (which all might assist the court, and whilst noting the guidance given by Holgate J in Flaxby Park Ltd v Harrogate BC & Ors [2020] EWHC 3204 (Admin), at [15] – [17]).

Wayne Beglan and Jack Barber are barristers at Cornerstone Barristers. They successfully represented the First Defendant, Waverley Borough Council.