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Council defeats legal challenge over local plan partial review

An umbrella alliance of local amenity groups has failed in a High Court bid to quash Cherwell District Council’s local plan partial review.

In Cherwell Development Watch Alliance v Cherwell District Council & Anor [2021] EWHC 2190 (Admin) Mrs Justice Thornton rejected claims by Cherwell Development Watch Alliance (CDWA) that a planning inspector’s decision on housing numbers had ignored important evidence and was irrational concerning the provision of a replacement golf course.

CDWA brought the case under section 113 of the Planning and Compulsory Purchase Act 2004.

The judge said the claim arose from the significant shortage of housing in Oxford, where lack of land meant space for new homes was needed in Cherwell and other neighbouring authority areas.

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Cherwell's plan commits it to deliver 4,400 homes by 2031 on Green Belt land around north Oxford, including the site of the North Oxford Golf Course, with 30 hectares of agricultural land reserved for a replacement golf course.

CDWA said that in deciding 'exceptional circumstances' existed to justify building on green belt, the inspector failed to take account of the need for homes based on demographic growth having reduced by 28% since an assessment in 2014.

Cherwell argued that the inspector plainly took account of the updated evidence on housing need and reached a planning judgement open to him.

CDWA said the inspector failed to take account of evidence that the earmarked farm land could not offer an equivalent or better replacement golf course, while the council and the Secretary of State for Housing, Communities and Local Government said this point was “a thinly disguised attack on the merits”.

Thornton J said: “Firstly, it is not wrong in principle, let alone unlawful, for a local planning authority to incorporate in the housing requirements set out in its local plan a proportion of the unmet housing need in another authority's area.

“Secondly, in these sorts of 'cross border' housing need cases the assessment of unmet housing need in a neighbouring authority's area is no more an exact science, and may often be less so, than the assessment of housing needs in an authority's own area. It may be less so because the evidence to inform it may be more limited.

‘It is in any event a classic process of evaluation undertaken not by the court but by a planning decision maker, inherently imprecise and for which there is no prescribed, uniform approach.”

Thornton J said the inspector handling the Cherwell plan took account of the updated housing numbers but agreed with the inspectors of the Oxford plan “they did not matter because the housing crisis remained” and concluded this amounted to exceptional circumstances to justify alteration of Green Belt boundaries.

“The inspector's judgment in this respect was unimpeachable,” the judge said.

She added: “Where it is alleged…that a decision-maker has failed to take into account a material consideration, it must be shown that the decision-maker was compelled by legislation (expressly or implicitly), or by a policy which had to be applied, to take the particular consideration into account, or, on the facts, the matter was so ‘obviously material’, that it was irrational not to have taken it into account.”

Turning to the golf course issue, CDWA said the inspector's decision on the replacement land was irrational, fundamentally flawed and unreasoned as there was no evidence to support his conclusion that the Frieze Farm site could accommodate the golf course.

Thornton J said: “There is nothing in the inspector's report to support the claimant's allegation that he failed to take account of its evidence as to the alleged unsuitability of [the site].

“Any such contention would only have traction if all the evidence pointed away from the conclusion that Frieze Farm satisfies the policy test, but that is not the case here.”

Mark Smulian

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