High Court judge rejects legal challenge over Bromley Local Plan

The High Court has rejected a claim that the London Borough of Bromley’s Local Plan was invalid due to legal errors on the part of the planning inspector who determined its soundness.

Sir Duncan Ouseley sitting as a High Court judge, said developer Dylon 2’s case against the plan, which covers the period from 2015 to 2029-30, was wrong on all the grounds argued in Dylon 2 Ltd v London Borough of Bromley [2019] EWHC 2366.

Dylon 2 claimed that parts of the plan should be quashed because of legal errors by the inspector in her judgment that the plan would be sound if modified.

The company argued that she misinterpreted the London plan, which required that a local plan should contain a specific policy for revision were the housing targets set then superseded by figures in a new London plan.

It also said the inspector misinterpreted another part of the London plan which obliged Bromley to “boost significantly the supply of housing as far as is consistent with the policies set out in the framework”.

Dylon 2’s final point was that the inspector had failed to give reasons for differing from the decision of an inspector on a planning appeal which occurred between the examination and her recommendations on it and which was sent to her by Dylon 2.

That inspector had concluded that the Bromley figures for its five-year land supply were speculative.

Sir Duncan said the challenge was not in substance to soundness but to the plan’s general conformity with national and London planning policy “and if it is not a challenge to general conformity, it seeks to subvert the requirement that the [plan] be in general conformity by erecting a non-existent requirement that there be a closer degree of conformity between policies than statute requires.

“It was also far from easy to see how the asserted error or conflict however could come under the rubric of ‘soundness’ in the framework, if it did not affect general conformity.”

He said the council, the Greater London Authority and the inspector had thought the plan was in general conformity with the London plan.

“Indeed, there is no basis for supposing that any of them thought there was any inconsistency at all,” he said.

“I find it impossible to see, even if there were an inconsistency of the nature contended for by [Dylon2 ] how that could have altered the reasonableness of the inspector's conclusion that the plan was nonetheless in general conformity with the London Plan.”

He also rejected the ground concerning “boosting the supply of housing”, noting “this interpretation was never raised before the inspector by Dylon 2, or the GLA or anyone else; that may not prevent the argument succeeding but it gets off to a very shaky start.

“There is simply no London plan policy requirement for a specific local plan review to consider the new figures when available.”

Sir Duncan further dismissed the complaint that the inspector had not taken account of the later planning appeal submitted to her by Dylon 2.

“This ground all comes about from a misconception about the reasons obligation on local plan inspectors, and of the reasons required in relation to previous allegedly inconsistent decisions,” he said.

“I am prepared to accept that this ground just passed the arguability threshold, and to grant permission. But I dismiss it.”

Mark Smulian

(c) HB Editorial Services Ltd 2009-2019