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The Guildford Local Plan challenge: key issues for plan-makers

James Findlay QC and Robert Williams examine the High Court's recent dismissal of three statutory challenges to the adoption of the Guildford Local Plan.

The High Court has dismissed three statutory challenges to the adoption of the Guildford Local Plan. The claims were brought by Compton Parish Council, Ockham Parish Council and Julian Cranwell, a member of the Guildford Green Belt Group.

In Compton Parish Council & Ors v Guildford Borough Council & Anor [2019] EWHC 3242 (Admin) Sir Duncan Ouseley sitting as a High Court Judge held that:

  • The Inspector had provided legally adequate reasons for concluding that the extent of housing supply was justified, notwithstanding the consequent need for the release of Green Belt land.
  • There was nothing unlawful in the Inspector's conclusion that there were exceptional circumstances justifying the release of land from the Green Belt to provide a housing supply of 4,000 homes above objectively assessed needs.
  • The Sustainability Appraisal and Habitats Regulation Assessment had been lawfully undertaken.
  • The Inspector and Council had properly considered the Secretary of State's refusal of a s.78 appeal when allocating land at the former Wisley Airfield site.

The key points arising from the judgment which will be of wider significance for plan-makers, and those advising them, include:

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  • The standard of reasons required from a Local Plan Inspector's report is different from that required of an Inspector determining a planning appeal.
  • In terms of the 'exceptional circumstances' test for altering Green Belt boundaries:
    • This is a matter primarily for the decision-maker.
    • The judicial emphasis is very much more on assessing the rationality of the judgment rather than providing a definition or criteria. The 'counsel of perfection' set out by Jay J in Calverton is not a checklist.
    • the test is expressed in deliberately broad terms.
    • exceptional circumstances do not connote 'rarity'.
    • general planning needs, such as ordinary housing, are not precluded from its scope.
    • 'exceptional circumstances' can be found in the accumulation of circumstances, not each of which has to itself be exceptional.
  • Whether a change in circumstances – such as a change in the OAN – warrants a further sustainability appraisal, including a further re-examination of reasonable alternatives, is a matter for the authority which can only be challenged on public law grounds.
  • There is nothing in the relevant legislation which prevents the plan-making authority from undertaking a second 'targeted' Regulation 19 consultation before submitting the plan for examination.
  • The fact that critical levels for NOx emissions, and critical load for nitrogen deposition, would be exceeded at the European Protected Site is not necessarily determinative. What must be considered is whether the decision-maker rationally concluded that it could be certain that there would be no adverse impacts on the integrity of the European Protected Site.

James Findlay QC and Robert Williams are barristers at Cornerstone Barristers. They acted for Guildford Borough Council in both the Local Plan examination and the High Court challenge.

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