Challenge to Cherwell Local Plan review dismissed

Jenny Wigley QC, Leon Glenister and Rupert Warren QC examine the High Court’s dismissal of a challenge to the Cherwell Local Plan review.

InCherwell Development Watch Alliance v Cherwell District Council & Anor [2021] EWHC 2190 (Admin) the High Court dismissed a challenge to the Cherwell Local Plan Partial Review, which was adopted by Cherwell District Council as part of its statutory development plan.

The claim was brought by the Cherwell Development Watch Alliance, a consortium of local residents groups, on two grounds of challenge: one based on housing need, and one based on whether a proposed replacement golf course would be “equivalent or better provision” when compared to the existing one.

Housing need and exceptional circumstances

Cherwell was one of a number of authorities around Oxford which was party to an agreement to help Oxford meet a shortfall in housing. In 2014, the Oxford housing need was assessed at 1400 dwellings per annum (dpa), although this was lower than the figure identified to meet the required affordable housing in full.

By 2018, the underlying figures for housing need in Oxford had fallen. However, as part of the Oxford Local Plan examination process, the Inspectors there had found that the housing need figure of 1400 dpa remained. Unlike in 2014, this would potentially meet affordable housing need in full.

The claimants in this challenge asserted that the Inspector had failed to consider the reduction in underlying figures when assessing whether there were exceptional circumstances justifying amending the Green Belt.

Thornton J considered that the Inspector had considered the underling figures but agreed with the conclusion of the Oxford inspectors, and that the Inspector had considered need, amongst other reasons, amounted to exceptional circumstances to justify the alteration of the Green Belt boundaries.

Of potential wider significance, Thornton J saw “force” in the submission that there is a policy distinction between the objectively assessed need (OAN) which is referred to in the NPPF and data that feeds into that figure. The latter may be material only so far that it would be irrational not to have considered it (paragraph 90).

Whether a replacement golf course was “equivalent or better provision in terms of quantity and quality”

One of the sites designated for housing was the North Oxfordshire Golf Course. This required there to be “equivalent or better provision in terms of quantity and quality” (NPPF 2012 paragraph 74), although the case law establishes quantity and quality can be offset. Thornton J considered the evidence before the Inspector and found that his conclusion that another site, known as ‘Land at Frieze Farm’, could provide alternative provision was one open to him.

Jenny Wigley QC appeared for the Claimant. Leon Glenister appeared for the Second Defendant. Rupert Warren QC appeared for the First Interested Party. All three are barristers at Landmark Chambers.