Local plan legal challenge shot down by High Court over “hypercritical scrutiny” of planning inspector report

A High Court judge has dismissed a statutory review claim of the adoption of Waverly Borough Council's Local Plan Part 2 over the claimants’ “hypercritical scrutiny” of a planning inspector’s report.

The two residents behind the legal challenge argued that although the local plan was found 'sound' by a planning inspector, the inspector failed to consider whether it was sound to restrict the scope of the Waverley Local Plan Part 2 to be a 'daughter document' to the Waverley Local Plan Part 1.

They also contended that the inspector misinterpreted the Local Plan Part 1 and that his conclusion that there was a reasonable prospect of varying or discharging a restrictive covenant was irrational.

In House & Anor v Waverley Borough Council & Anor [2023] EWHC 3011 (Admin) (28 November 2023), Mrs Justice Lang DBE dismissed the claim on all three grounds, stating that the inspector had considered the status and scope of the Waverley Local Plan Part 2 at length during public examination and that the matter had been adequately addressed in the inspector's report.

She said the inspector correctly applied the statutory requirements for an examination, which are set out in section 20(5)(a) the Planning and Compulsory Purchase Act 2004 (PCPA 2004), including the requirements of section 19 PCPA 2004 and the Town and Country Planning (Local Planning) (England) Regulations 2012.

She added: "Contrary to the Claimants' submissions, the Inspector did not treat the scope of [the Local Plan Part 2] as 'forbidden territory' which he should not consider, even if that was the approach the council invited him to take."

In her judgment, the claimants had subjected the inspector's report to the type of "hypercritical scrutiny", which she said was "deplored" by Lindblom LJ in St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2018] PTSR 746, at paragraph 7.

She continued: "On close analysis, it is apparent that the IR does not disclose any error of law by the inspector. This is a case in which the Claimants and the potential developers are seeking to re-run the submissions they made at the examination, and which the inspector rejected in the [inspector's report].

"In reaching his conclusions, the Inspector made a series of planning judgments which cannot be challenged on an application for statutory review under section 113 PCPA 2004."

The council was represented by Wayne Beglan and Jack Barber of Cornerstone Barristers.

Cllr Paul Follows, Leader of Waverley Borough Council, said: "As the local planning authority, it is our job to ensure there are enough new homes to support future growth aspirations, and we must make difficult decisions about where this much needed new housing should be built.

"It is impossible for everyone to agree on the most suitable locations, but it's important to respect the legal processes that underpin our national planning laws."

Adam Carey