Parish successfully challenges local plan after High Court finds 'legal errors'

Norton St Philip Parish Council has won on two of four grounds in a planning challenge to Mendip District Council after the High Court identified a series of legal errors in its adoption of its local plan.

The parish brought its case under s.113 of the Planning and Compulsory Purchase Act 2004 against Mendip’s decisions in December 2021 to adopt the Mendip District Local Plan 2006-29 Part II: Sites and Policies. In this were Core Policies 1 and 2. The former set the spatial strategy, distributing most development to Frome, Glastonbury, Shepton Mallet, Street and Wells. The second set the overall housing requirement at 9,635 homes over the plan period and a decision to extend that period from 2028 to 2029 meant this included an additional 505 homes.

Mr Justice Holgate said there were two central issues. The first was whether the inspector who conducted the independent examination of the plan’s second part misinterpreted policy as requiring all the 505 dwellings to be located in the north-east of the district, rather than considering their distribution in accordance with the spatial strategy. Second, did Mendip fail to comply with regulation 12(2)(b) of the Environmental Assessment of Plans and Programmes Regulations 2004 by failing to consider any alternatives to allocating the 505 dwellings in the north-east of the district?

The land was allocated mainly to the fringes of Midsomer Norton land and at Norton St Philip was earmarked for 27 dwellings. The parish sought an order for remittal in respect of the policies on which the decision was based and the Secretary of State for Levelling Up, Housing and Communities was joined as the first interested party because of the criticisms made by the parish of the inspector. Holgate J said on the ground that there has been a misinterpretation of the local plan by considering the 505 dwellings had to be allocated in the north-east of the district that he was “left in no doubt that the inspector who examined [it] misinterpreted [policy and] in my judgment the legal errors…are sufficient for this claim to be allowed.”

He said Mendip’s decision to adopt the relevant plan was dependent on the inspector deeming it sound, which in turn was dependent on the main modifications he recommended to make the plan sound, including the modifications that were the subject of this challenge. “That recommendation was vitiated by the errors identified”, the judge said, as a result of which the disputed policies could not stand.

The second ground successfully argued was a failure to consider any reasonable alternatives to allocating the additional 505 dwellings within the north-east of the district through the sustainability appraisal. Mendip argued the court should refuse to grant relief as the parish has in practice been able to enjoy the rights conferred by the 2004 Regulations and could not demonstrate substantial prejudice. It said six days of hearings took place on the distribution and Norton St Philip would have been able to advance an alternative distribution. Holgate J said: "In my judgment, these arguments have no merit.

The original sustainability appraisal did not consider alternative sites across the district for the purposes of the allocations to be made…or in particular the allocation of the additional 505 dwellings.” He added it was for Mendip to produce a legally-compliant environmental report upon which consultation could take place and “on the material before the court, contributions made by the claimant and others at the hearing were no substitute for a proper appraisal of housing distribution by the local planning authority followed by consultation. “Worse still in the present case, it is apparent from the evidence that Mendip's approach to strategic environmental assessment for the 505 dwellings issue was influenced by the inspector's misreading of [local planning policy] documentation.”

The judge said Mendip stated that it did not wish to undertake a district-wide exercise because that would not address the inspector's concerns on soundness, but “the court cannot assume that Mendip's approach might not have been significantly different if that had not been a constraining factor”. Ground three concerned failure to have regard to a requirement for proportionate development in rural settlements and Ground 4 a claim of irrationality. Holgate J said neither had any merit.

Mark Smulian is a freelance journalist specialising in local government, law, travel, transport, housing, construction and planning.