Council leader urges Secretary of State to intervene after inspectors indicate they will fail Local Plan, threatens judicial review challenge

The Leader of Tonbridge and Malling Borough Council has written to the Secretary of State for Housing, Communities and Local Government urging him to intervene after inspectors indicated that they considered it a “very strong likelihood” that they will fail its Local Plan.

In the letter Cllr Nicolas Heslop warned Robert Jenrick that in the absence of intervention, “the only other potential recourse open to [the council] would be a legal challenge by judicial review”.

The examination of the Tonbridge and Malling Local Plan began on 6 October 2020. After the first three days the inspectors wrote to the council to pause proceedings while they gave further consideration to matters of legal compliance.

The local authority received the inspectors’ letter on 15 December 2020. This set out their concerns, which relate to the Duty to Cooperate, specifically in relation to the matter of unmet need arising in neighbouring Sevenoaks District.

Cllr Heslop said the council sent a full response to the inspectors and inviting them to amend their provisional decision that the Duty to Cooperate had not been met. However, their letter indicated in terms that they considered it likely that they would fail the Plan.

Tonbridge and Malling’s Leader said: “The Council is firmly of the opinion that the Inspectors have made errors in their approach to the Duty to Cooperate, which is explained in the Council’s response…. Whilst the Inspectors have formed clear provisional views the Council is in no doubt that the Secretary of State could properly and lawfully take a different view on what is primarily a matter of planning judgment for the decision maker.”

The letter warned that a failure of the submitted Plan would lead, even in a best-case scenario, to a substantial delay in the adoption of any Local Plan in Tonbridge & Malling.

“If this were to happen, it would run directly contrary to the Government’s stated aims of ensuring 300,000 homes a year are delivered through pragmatic Local Plans. We submitted a plan that fully met our housing needs and which would contribute positively to that stated Government aim. Failing the Plan will do nothing to address the potential unmet need of Sevenoaks, but it will mean that actual housing need in the Borough of Tonbridge and Malling will not be met,” Cllr Heslop said.

In the absence of intervention, the only other potential recourse open to the council would be a legal challenge by judicial review, he said.

Cllr Heslop acknowledged that a successful judicial review would cause substantial delay in making the Plan. “Failure would mean having to substantially recommence plan making from the beginning,” he added.

Tonbridge and Malling’s Leader, who said the two local MPs supported the council’s position and would be sending letters of support, suggested that it seemed that the sole basis for the inspectors’ finding was that Tonbridge and Malling did not do more to address Sevenoaks District Council’s unmet housing need.

“However, as set out in more detail in the Council’s response, at the time of submission of the Council’s plan Sevenoaks District Council’s unmet need was not established. Sevenoaks District Council did not allege any failure by the Council to meet the Duty to Cooperate,” Cllr Heslop said.

“It appears to the Council that the Inspectors have misinterpreted the significance of the Duty to Cooperate, particularly in the light of the timescales set out in the Council’s response, at the expense of a pragmatic approach to the implementation of the Local Plan.”

Cllr Heslop added that intervention by the Secretary of State would enable the acceleration of the council’s Local Plan in an area of acknowledged high housing pressure. It would also provide a clear signal in relation to the Duty to Cooperate to those local authorities seeking to meet their housing needs in the West Kent Housing Market Area, without undermining the duties of the inspectors, he suggested.

The letter said: “The Council is keen for the paused Local Plan examination to proceed expeditiously and at the earliest practical opportunity so that Tonbridge and Malling residents and businesses can enjoy the full benefits of an up to date development plan that seeks to meet its future needs and re-establishes a five-year housing land supply for the plan period up to 2031.”

In November last year Sevenoaks failed in a Planning Court challenge to an inspector’s finding that it had failed to comply with the duty to cooperate when preparing the Sevenoaks District Local Plan for its administrative area.