Council fails in bid to overturn finding that its Core Strategy was unsound

A council’s plans to build 28,000 new homes by 2026 have been left in tatters after the High Court backed a planning inspector’s finding that the core strategy was unsound when faced with a neighbouring authority’s hostility.

In May 2010 Stevenage Borough Council had put forward its Core Strategy and other Development Plan Documents (DPDs). These would have seen almost half of the new homes built on land in North Hertfordshire, but the district council (NHDC) there was strongly opposed to the move.

NHDC submitted evidence to a public examination in early 2011 that it said showed Stevenage could not meet the statutory test for a core strategy.

In May 2011 the planning inspector agreed. He concluded that Stevenage’s Core Strategy – designed to conform with the East of England regional plan (EoEP) – was unsound and could not be delivered because the cross border issues remained unresolved.

Stevenage sought to have the inspector’s finding of unsoundness quashed in the High Court. It argued that the inspector had wrongly taken into account the government’s intention to revoke Regional Strategies, and had misdirected himself about the obligations of NHDC in preparing its DPD timetable and the plans themselves.

Stevenage said these had to conform at all stages to the still extant Regional Strategy, and the inspector should have assumed that NHDC would comply with that legal obligation at all stages.

In Stevenage Borough Council, R v Secretary of State for Communities and Local Government & Anor [2011] EWHC 3136, Mr Justice Ouseley rejected Stevenage’s case.

He said Stevenage’s challenge was not a challenge to the lawfulness of the decisions by NHDC in July 2010 no longer to co-operate with Stevenage in the implementation of the latter’s Core Strategy, and in February 2011 to adopt a Local Development Scheme (LDS) which envisaged that the submission of its own Core Strategy to the Secretary of State would not be until April 2013.

“In my judgment, the lawfulness of those decisions cannot be attacked by the indirect method of challenging such conclusions as the inspector reached about them,” the High Court judge said.

Mr Justice Ouseley said the inspector was obliged to reach his decision on the soundness of the Stevenage Strategy on the basis that NHDC had acted lawfully in deciding to end co-operation with Stevenage and in setting a LDS timetable which could lead to DPDs being submitted which did not have to conform to any Regional Strategy.

The judge said the statutory obligation was "quite clear" – the DPD must be in general conformity with the Regional Strategy at the stage when it is submitted for examination. "S20(2)(b) requires the local authority to submit it when it is ready and when it thinks that the plan generally conforms to the Regional Strategy," he added. "There is no earlier obligation in relation to general conformity."

Mr Justice Ouseley said that s.19 of the Planning and Compulsory Purchase Act 2004 did not, by contrast, contain a requirement for general conformity. "The statute requires the DPD to be prepared in accordance with the Local Development Scheme. The statutory duty at that stage in relation to the Regional Strategy is to have "due regard' to it."

The judge said this was the flexible language that Sullivan LJ in the Cala Homes case contrasted with the inflexible requirement under s. 24 that the DPD conform generally to the Regional Strategy.

"In my view, and consistently with Cala Homes in the Court of Appeal, the local authority in developing its DPD is entitled to take a view on the ways in which a Regional Strategy may be evolving away from the immediately current version, and by the same reasoning is entitled to take a view on its prospective revocation, in deciding how to have regard to it," Mr Justice Ouseley said.

He added: "The statutory scheme gives a flexibility at earlier stages in the plan-making process, which it removes at the stage of submission for examination. I can see no justification for importing that lack of flexibility into the earlier stage, as a matter of statutory construction."

The High Court judge went on to say that there was “something of an air of unreality” about Stevenage’s submissions. “The statutory requirement to test a plan for its soundness involves, obviously, consideration of its practical implementation,” he said.

Mr Justice Ouseley added that the Stevenage Core Strategy was critically dependent for its practical implementation on a local authority which was opposed to that strategy and intended not to co-operate in its achievement.

“The Secretary of State has indicated no intention to bring pressure to bear on it [North Hertfordshire] to do otherwise nor to exercise any default powers he may have to that same end,” he said.

The High Court judge said: “The law does not require NHDC to pretend it holds views which it does not hold and to refrain from letting housing developers know that it is hostile to large scale housing development in its area to meet the ambitions of Stevenage BC, and will be looking to take advantage of the prospective revocation of the EoEP whenever it can.”

The judge pointed out that the soundness of the Core Strategy foundered, in the inspector’s judgment, on a lawful lack of co-operation.

“As the inspector recognised,…. there is no longer any reality to the necessary co-operation between NHDC and Stevenage BC on which the latter’s Core Strategy, and indeed implementation of the Regional Strategy depended,” he added.

“If that decision was based on a lawful approach by him, as in my judgment it was, there is no possible argument that it was an unreasonable conclusion.”

The judge said he appreciated that Stevenage could not now produce a plan that conformed generally to the Regional Strategy and was sound. “But these are very unusual circumstances, which cannot be used to give a different meaning to the statutory provisions from that which they bear, or to require a test of practicability to be met by demonstrably false assumptions,” he said.

In a statement NHDC hailed the ruling as providing “clear direction of the way councils can implement the emerging planning legislation”.

It added: “This decision also means that NHDC can now take into account the impending revocation of the East of England Plan in moving forward its own core strategy, which will include locally based housing targets.”

Cllr Tom Brindley, Portfolio Holder for Planning Transport and Enterprise at NHDC, added: "This is an important decision which has significant implications for North Hertfordshire. Stevenage’s Core Strategy was proposing 12,500 houses in the North Hertfordshire green belt around Stevenage.

“The Council has fought long and hard against these imposed housing figures which bear no relationship to the individual circumstances within our district. The judgement reaffirms the legality of this Council's actions.

“It is most helpful that the legal position has now been clarified as many authorities up and down the country have been facing uncertainty about the status of emerging legislation and how that applies to their own Local Development Framework."

Cllr John Gardner, Executive Member for Environment and Regeneration at Stevenage, said the council was disappointed by the High Court’s decision.

“It represents yet another attack on the provision of vitally needed housing and economic growth at a time when the country needs both so badly,” he argued.

Cllr Gardner said the ruling meant Stevenage would need to think again about where to build enough homes for the future and how to regenerate the town centre.

The council hoped to be able to make an announcement within the next six months, he added. “We remain committed to our vision of an economically vibrant town that both meets the aspiration of its people and contributes to the sustainable economic growth and the prosperity of our country. It is regretted that, at this point in time, this objective does not appear to be shared by some other bodies.”

Philip Hoult