Lessons from a recent local plan challenge

Katherine Barnes considers a recent High Court case which has important implications for plan-making and local plan examinations in general.

On 23 July 2020 Holgate J handed down judgment in Keep Bourne End Green v Buckinghamshire Council [2020 EWHC 1984 (Admin), dismissing an application under s.113 of the Planning and Compulsory Purchase Act 2004 for statutory review of the Wycombe District Local Plan (“Plan”) brought by a local residents’ group who objected to the release of land from the Green Belt in order to meet housing need.

The grounds of challenge were broadly focussed around two issues, both of which are of obvious importance to plan-making and local plan examinations in general.

These issues were: (1) whether the 2016-based household projections produced by the Office for National Statistics (“ONS”) should have been taken into account in the assessment of the “objectively assessed housing need” (“OAHN”) for the district; and, (2) the identification of “exceptional circumstances” to justify the release of green belt land through a review of green belt boundaries.

Use of the most up-to-date evidence (the 2016 ONS projections)

In respect of (1), the Claimant’s arguments centred on the fact that the Inspector had continued to rely on the 2014 ONS projections as the starting point for the OAHN figure rather than the 2016 ONS projections which were published shortly before the close of the examination hearings and which showed a material reduction in the projected growth in the number of households (a reduction of c.42%). The Inspector’s justification in this regard was as follows:

“There are some doubts about the reliability of the 2016-projections and their reliability for plan making. Notwithstanding this, the PPG on HEDNA makes clear that the household projections are only the starting point for establishing a housing requirement figure. For these reasons and having regard to the importance of boosting the supply, it would be unjustified to revisit the Plan’s evidence base and delay adoption of the Plan in the light of the 2016-based projections.”

In addition, the Claimant relied on the fact that the above approach of the Inspector was inconsistent with that taken by the Inspector examining the Guildford Borough Local Plan (there the local authority had revised its OAHN based on the 2016 ONS projections and the Inspector had found this to be sound).

The court rejected the Claimants arguments on this issue, finding that the NPPF advice that local plans should be based on up-to-date evidence, and the indication in the NPPG that this applied “wherever possible”, did not mean that up-to-date evidence had to be relied on unless it was “impossible”. Rather, the expectation was that the most recent information would be used, but not if the change affecting housing would not be meaningful. Further, this was a question of planning judgment which could only be challenged on an irrationality basis.

The court also considered legitimate the Inspector’s concerns about the reliability of the 2016 ONS projections, finding that the Government’s Technical Consultation on these figures had identified issues with the use of the 2016 ONS projections which logically applied to transitional plans as well as “new” plans developed in accordance with the standard methodology.

As for the approach of the Guildford Inspector, the court found that he did not actually consider for himself whether the 2016 ONS projections should be used or whether a “meaningful change” was involved. Rather, the Inspector considered in the round whether the OAHN figures were sound. As such, the two cases, Guildford and Wycombe, were not “like” with the result that the consistency principle did not bite.

Green Belt land release

The Claimant also argued that “exceptional circumstances” test which governs the release of land from the Green Belt had been misunderstood, principally because housing need alone could not meet this threshold.

The court rejected this argument with reference to Compton Parish Council v Guildford Borough Council [2020] JPL 661 and Calverton Parish Council v Nottingham City Council [2015] EWHC 1078, noting that that which constitutes “exceptional circumstances” in a particular case depends on the planning judgment of the decision-maker.

Moreover, the court confirmed that there is no requirement for release of land in the Green Belt to be a last resort or that, to justify the release of land, the intended development had to deliver any benefits (such as infrastructure) beyond housing.

Comment

The decision is therefore a reminder of the broad discretion enjoyed by decision-makers when it comes to local plans, and therefore the importance of objectors engaging as fully as possible with the local plan process at any early stage.

More specifically with reference to issue (1), it is hard to take issue with the court’s interpretation of the relevant guidance, finding as it did that “the NPPG contains an exhortation to use the latest available information, but not if the change affecting housing would not be meaningful”. However, while the Inspector’s reasoning in this respect not ultimately have been unlawful, it certainly could have been clearer. In particular, although the Council informed the Inspector in response to a question that the 2016 ONS projections did not constitute a “meaningful change in the housing situation in the district” (and a main modification was recommended recording that position, which was accepted by the Inspector), the reasons given in the formal Inspector’s report did not address why the new projections did not amount to a meaningful change and instead identified other reasons why it was appropriate not to rely on them. Arguably, therefore, there was a departure from guidance without proper reasons given so doing so. Even if there was not, however, those involved in the local plan process would do well to ensure justifications follow as closely as possible the relevant policy test. Needless to say, sometimes that is easier said than done.

Katherine Barnes is a barrister at 39 Essex Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. or by telephone at 020 7832 1111.