Council defeats High Court challenge over adoption of policies in Local Plan

A Deputy High Court Judge has rejected a legal challenge to Waverley Borough Council’s adoption of certain policies in its Local Plan.

The case of CPRE Surrey & Anor v Waverley Borough Council & Ors [2018] EWHC 2969 involved three closely linked claims concerning the same site at Dunsfold Aerodrome and largely the same issue, Natalie Lieven QC said.

The claims were:

i) Two challenges under s. 113 Planning and Compulsory Purchase Act 2004 to the decision of Waverley to adopt policies ALH1 (which set out a figure of 519 dwellings per annum or dpa), SS7 (which allocated the new settlement at the aerodrome for 2,600 homes) and SS7A (which set out the Dunsfold Aerodrome design strategy) of the Waverley Borough Local Plan Part One (LPP1); these were brought by CPRE Surrey challenging only ALH1 and POW Campaign Limited, which represents a large number of local residents in the Dunsfold area but also across other parts of Waverley, challenging all three policies;

ii) A challenge under s.288 Town and Country Planning Act 1990 to the decision of the Secretary of State for Housing, Communities and Local Government dated 29 March 2018 to grant planning permission for a new settlement of 1,800 homes at Dunsfold Aerodrome, brought by POW. That decision was taken after the adoption of LPP1 and relied in part on the policies in it.

The interested party, Dunsfold Airport Limited, owns or has a leasehold interest in a substantial part of the land allocated for development at Dunsfold Aerodrome in LPP1, and for which planning permission was granted by the SoS. The company was joined as a party to the s 113 claims by consent, and named as an interested party in the s 288 claim.

Judge Lieven QC said the issues were as follows;

i) Under the s.113 challenges POW and CPRE argued that the council erred in law in adopting LPP1 because the Local Plan Inspector (Inspector Bore) should not have allocated 83 dpa to Waverley's Objectively Assessed Need (OAN). The arguments all turned on the approach the Inspector took to Woking Borough Council's (the neighbouring local planning authority) unmet housing need. The POW challenge focused on policies ALH1 and SS7 and SS7A of LPP1;

ii) CPRE took the same point in respect of ALH1 and part of policy RE2, their concern was not specifically the allocation of the Dunsfold site to the other implications of taking the higher housing need figure in the LPP1;

iii) CPRE raised a reasons challenge in respect of the adoption of those policies in LPP1;

iv) The s.288 challenge was parasitic upon the s.113 challenge, and fell away if that was rejected. However, the judge said that if the s.113 challenge was accepted there was then a further issue as to the legal consequences of an error of law in the Local Plan process, for the Secretary of State's decision on the planning application. POW's case was that the grant of planning permission in reliance on LPP1 was undermined by the alleged unlawfulness of the adoption of LPP1 and therefore the s.77 decision should be quashed pursuant to s.288.

Judge Lieven said: “The Inspector was placed in a difficult position. For the Plan to be sound he had to establish a figure for the OAN in Waverley, and ensure the Plan sought to meet that OAN and unmet need in the HMA [housing market assessment], see NPPF para 182.

“However, he was not carrying out the Woking Local Plan examination and indeed Woking is very far off any such stage of its plan making process. He did not, and realistically could not have had, all the evidence which would have been necessary to determine whatever Local Plan housing requirement figure Woking will ultimately bring forward. The Inspector was carrying out a fundamentally different exercise from any future Woking Local Plan Inspector.”

The judge said the Waverley Inspector was necessarily going to have limited material in respect of Woking's OAN; how the SHMA [West Surrey Strategic Housing Market Assessment published in 2015] figure should be varied; and how the identified need could be met. “The determination of Woking's unmet need in the context of the WBC [Waverley Borough Council] Local Plan, and how it was to be apportioned to Waverley, was certainly not an "exact science"; was necessarily based on imperfect material and involved a very large amount of planning judgment,” she said.

The judge said that, contrary to the submissions of counsel for the claimants, it was clear that the Inspector did take into account the fact that Woking's OAN was based on 2012 projections and that the ultimate figure in a future Woking Local Plan, could be lower.

She said the inspector fully appreciated that Woking’s OAN might fall, and had expressly referred to “housing opportunities” that might come forward. He had also been correct to say that it was not for him to re-calculate Woking’s OAN.

“He took a sensible, pragmatic and in my view lawful approach that although the figure might fall, there was undoubtedly going to be a material level of unmet need in Woking. Some part of that would beyond doubt have to be met in Waverley," she found.

Judge Lieven accepted that the 50% allocation to Waverley did “appear to be a crude one but cannot possibly be said to be outside a reasonable planning judgement, given that Waverley is undoubtedly considerably less constrained in terms of Green Belt and AONB than is Guildford or Woking….”

As regards the reasons challenge, the judge said she thought the Inspector's reasons were “perfectly adequate”.

Dismissing the claim, Judge Lieven said she did not think that the Inspector and Waverley Borough Council erred in law in the adoption of the LPP1, and so she rejected the s.113 challenges.