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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> CPRE Surrey & Anor v Waverley Borough Council & Ors  EWHC 2969 (Admin) (05 November 2018)
Cite as:  EWHC 2969 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| (1) CPRE SURREY
(2) POWCAMPAIGN LIMITED
|- and -
|WAVERLEY BOROUGH COUNCIL
SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT
DUNSFOLD AIRPORT LIMITED
(instructed by Richard Buxton Environmental and Public Law) for the Claimants
Wayne Beglan and Asitha Ranatunga
(instructed by Waverley Borough Council) for the First Defendant
Clare Perry (instructed by Government Legal Department) for the Second Defendant
David Elvin QC and Richard Turney
(instructed by Mills and Reeve) for the Interested Party
Hearing dates: 9-10 October 2018
Crown Copyright ©
Nathalie Lieven QC :
i) Two challenges under s. 113 Planning and Compulsory Purchase Act 2004 ("PCPA") to the decision of Waverley Borough Council "WBC" to adopt policies ALH1, SS7 and SS7A of the Waverley Borough Local Plan Part One (LPP1); brought by CPRE Surrey ("CPRE") challenging only ALH1 and POW Campaign Limited ("POW") 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 ("SoS") dated 29 March 2018 to grant planning permission for a new settlement at Dunsfold Aerodrome, brought by POW. That decision was taken after the adoption of LPP1 and relied in part on the policies in it.
i) Under the s.113 challenges POW and CPRE argue that WBC erred in law in adopting LPP1 because the Local Plan Inspector (Inspector Bore) should not have allocated 83 dwellings per annum (dpa) to WBC's Objectively Assessed Need (OAN). The arguments all turn on the approach the Inspector took to Woking Borough Council's (the neighbouring local planning authority) unmet housing need. The POW challenge focuses on policies ALH1 and SS7 and SS7A of LPP1;
ii) CPRE take the same point in respect of ALH1 and part of policy RE2, their concern is not specifically the allocation of the Dunsfold site to the other implications of taking the higher housing need figure in the LPP1;
iii) CPRE raise a reasons challenge in respect of the adoption of those policies in LPP1;
iv) The s.288 challenge is parasitic upon the s.113 challenge, and falls away if that is rejected. However, if the s.113 challenge is accepted there is then a further issue as to the legal consequences of an error of law in the Local Plan process, for the SoS's decision on the planning application. POW's case is that the grant of planning permission in reliance on LPP1 is undermined by the alleged unlawfulness of the adoption of LPP1 and therefore the s.77 decision should be quashed pursuant to s.288.
i) ALH1, which set out the figure of 519 dpa;
ii) SS7, which allocated the new settlement at Dunsfold Aerodrome for 2,600 homes; and
iii) SS7A, which set out the Dunsfold Aerodrome design strategy. This policy was introduced by the Main Modifications.
i) "19. The SHMA findings are based on the 2012 Household Projections which indicated a demographic need for 1,352 dpa across the HMA of which 493 were apportioned to Waverley Borough. However, the 2014 CLG household projections, published in 2016, are meaningfully different from those of 2012 and indicate a lower demographically-based figure for Waverley of 378 dpa. This becomes 396 dpa after factoring in the SHMA-assessed vacancy rate of 4.7%."
ii) He then added a 25% uplift to reflect market signals, in particular the affordability position in Waverley, which was the third worst in England outside London. . This gave a total OAN of 495 dpa.
"Meeting unmet housing need in the HMA
26. The West Surrey HMA also includes Woking and Guildford Borough Councils. The SHMA calculates Woking's OAN to be 517 dpa, but Woking's adopted Core Strategy 2010-2027 only makes provision for 292 dpa over its plan period, leaving unmet housing need against the SHMA figure of 225 dpa, or 3,150 dwellings.
27. The submitted Waverley Borough Local Plan makes no provision for Woking's unmet housing need. However, the NPPF states that local planning authorities should meet the objectively assessed need within their housing market areas. This requires cooperation between the authorities in the HMA to ensure that the need is met. Almost all the land outside Woking's built up area, and most of the land outside Guildford's built up area, is in the Green Belt. Waverley, even allowing for its Green Belt and AONB, and the European sites nearby, is significantly less constrained. Making no allowance in Waverley for Woking's unmet housing need is therefore not a sound position.
28. The under-provision exists now and has been growing from the start of Woking's plan period; it needs to be addressed. It is true that any future review of Woking's local plan will provide an opportunity to re-examine housing opportunities and adjust its assessment of unmet need against a new OAN calculation (7), but it is very clear from Woking Borough Council's evidence to the hearing and from the obvious constraints imposed by the ring of Green Belt around Woking, that there remains a significant delivery shortfall against housing needs in Woking, and that the town will very probably remain unable to accommodate a significant proportion of its OAN in future.
29. That said, Waverley should not be expected to accommodate the full amount of Woking's unmet need indicated by the SHMA figures. The 2014 household projections for Woking were lower than those on which the SHMA were based, and although the adjustment was less significant in percentage and numerical terms than at Waverley, the figures suggest that the scale of the under-provision could be less than 225 dpa. It is also possible that Woking might be able to deliver more housing than envisaged by its plan because, although there is still a running shortfall from the start of its plan period, housing delivery in 2013-14, 2015-16 and 2016-17 was ahead of the Core Strategy housing requirement. Moreover, Guildford is going through the plan preparation process, and the potential for Guildford to meet a proportion of Woking's unmet housing need will need to be tested through its own local plan examination. It would therefore be appropriate and reasonable for Waverley to accommodate half of the figure for unmet need identified through the SHMA process. The relevant figure annualised over Waverley's plan period amounts to 83 dpa, which would need to be added to the OAN of 495 dpa."
[footnote] "(7) Re calculating Woking's OAN in the light of the 2014 household projections is outside the scope of this examination. The SHMA figurer has therefore been referred to but with a recognition that lower household projections may result in some reduction to the degree of unmet need".
"19 The relevant law is not controversial. It comprises seven familiar principles:
(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph": see the judgment of Forbes J in Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P & CR 26, 28.
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration: see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2)  1 WLR 1953 , 1964B–G.
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223 ) to give material considerations "whatever weight [it] thinks fit or no weight at all": see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759 , 780F–H. And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision: see the judgment of Sullivan J in Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions (Practice Note)  EWHC Admin 74 at ;  PTSR 1126, para 5 (renumbered).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration: see the judgment of Lord Reed JSC in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening)  PTSR 983 , paras 17–22.
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question: see the judgment of Hoffmann LJ in South Somerset District Council v Secretary of State for the Environment (Practice Note)  PTSR 1075, 1076–1077; (1992) 66 P & CR 83 , 85.
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored: see, for example, the judgment of Lang J in Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government  EWHC 1419 (QB) at .
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in *1292 the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises: see, for example, the judgment of Pill LJ Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government  1 P & CR 6 , paras 12–14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137 , 145.
"(1) This section applies to–
(d) a local development plan;
and anything falling within paragraphs (a) to (g) is referred to in this section as a relevant document.
(2) A relevant document must not be questioned in any legal proceedings except in so far as is provided by the following provisions of this section.
(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that–
(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with.
(6) Subsection (7) applies if the High Court is satisfied–
(a) that a relevant document is to any extent outside the appropriate power;
(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement.
(7) The High Court may—
(a) quash the relevant document;
(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.
(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.
(7B) Directions under subsection (7A) may in particular—
(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;
(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;
(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);
(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.
(7C) The High Court's powers under subsections (7) and (7A) are exercisable in relation to the relevant document—
(a) wholly or in part;
(b) generally or as it affects the property of the applicant.
(9) The appropriate power is–
(c) Part 2 of this Act in the case of a development plan document or any revision of it;
(10) A procedural requirement is a requirement under the appropriate power or contained in regulations or an order made under that power which relates to the adoption, publication or approval of a relevant document. …"
" The court's powers to grant appropriate relief under section 113(7), (7A), (7B) and (7C) are widely drawn. They afford the court an ample range of remedies to overcome unlawfulness in the various circumstances in which it may occur in a plan-making process. As was recognised by the judge in the University of Bristol case  EWHC 231 (Admin), the provisions in subsection (7A), (7B) and (7C) were a deliberate expansion of the court's powers to grant relief where a local plan is successfully challenged under section 113. They introduce greater flexibility in the remedies the court may fashion to deal with unlawfulness, having regard to the stage of the process at which it has arisen, and avoiding—when it is possible to do so—uncertainty, expense and delay. They include a broad range of potential requirements in directions given under subsection (7A), all of which go to "the action to be taken in relation to the [relevant] document". The four types of requirement specified in subsection (7B) are stated to be requirements which directions "may in particular" include. None of them, however, would warrant the substitution by the court of its own view as to the issues of substance in a plan-making process, or as to the substantive content of the plan—its policies and text. They do not allow the court to cross the firm boundary separating its proper function in adjudicating on statutory challenges and claims for judicial review in the planning field from the proper exercise of planning judgment by the decision-maker."
"… enable the court to fit the relief it grants precisely to the particular error of law, in the particular circumstances in which that has occurred. In principle, as I see it, they may be used to require the "person or body" in question to correct some obvious mistake or omission made in the course of the plan-making process, perhaps at a very late stage in the process, without upsetting the whole process by requiring its earlier stages to be gone through again. I cannot see why they should not be used, in an appropriate case, to give proper effect to a planning judgment already exercised by the "person or body" concerned—typically in the formulation of policy or text, or in the allocation of a site for development of a particular kind—or to ensure that a decision taken by that "person or body" in consequence of such an exercise of planning judgment is properly reflected in the outcome of the process. Used in this way, the court's power to give directions can overcome deficiencies in the process without its trespassing into the realm of planning judgment and without arrogating to itself the functions of the inspector who has conducted the examination of a local plan or of the local planning authority in preparing and adopting the plan."
" Responsibility for the assessment of housing need lies with the decision-maker, and is no part of the court's role in reviewing the decision. Although the decision-maker is clearly expected to establish, at least to a reasonable level of accuracy and reliability, a level of housing need that represents the "full, objectively assessed needs" as a basis for determining whether a five-year supply exists, this is not an "exact science" (the expression used in paragraph 2a-014-20140306 of the PPG). It is an evaluation that involves the decision-makers exercise of planning judgment on the available material, which may not be perfect or complete… The scope for a reasonable and lawful planning judgment here is broad… Often there may be no single correct figure representing the "full, objectively assessed needs" for housing in the relevant area. More than one figure may be reasonable to use. It may well be sensible to adopt a range, rather than trying to identify a single figure. Unless relevant policy in the NPPF or guidance in the PPG has plainly been misunderstood or misapplied, the crucial question will always be whether planning judgment has been exercised lawfully, on the relevant material, in assessing housing need in the relevant area… A legalistic approach is more likely to obscure the answer to this question than reveal it…"
"26. Moreover, I accept Mr Stinchcombe QC's submissions for Hunston that it is not for an inspector on a s.78 appeal to seek to carry out some sort of local plan process as part of determining the appeal, so as to arrive at a constrained housing requirement figure. An inspector in that situation is not in a position to carry out such an exercise in a proper fashion, since it is impossible for any rounded assessment similar to the local plan process to be done. That process is an elaborate one involving many parties who are not present at or involved in the s.78 appeal. I appreciate that the inspector here was indeed using the figure from the revoked East of England Plan merely as a proxy, but the Government has expressly moved away from a "top-down" approach of the kind which led to the figure of 360 housing units required per annum. I have some sympathy for the inspector, who was seeking to interpret policies which were at best ambiguous when dealing with the situation which existed here, but it seems to me to have been mistaken to use a figure for housing requirements below the full objectively assessed needs figure until such time as the Local Plan process came up with a constrained figure"
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law of fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission … Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he had genuinely been substantially prejudiced by the failure to provide an adequately reasons decision." (para. 36 per Lord Brown)
i) Para 153 places the obligation on the LPA to produce a local plan;"Each local planning authority should produce a Local Plan for its area. This can be reviewed in whole or in part to respond flexibly to changing circumstances. Any additional development plan documents should only be used where clearly justified. Supplementary planning documents should be used where they can help applicants make successful applications or aid infrastructure delivery, and should not be used to add unnecessarily to the financial burdens on development".
ii) Para 158 under the heading of "Using a proportionate evidence base" says;"Each local planning authority should ensure that the Local Plan is based on adequate, up-to-date and relevant evidence about the economic, social and environmental characteristics and prospects of the area. Local planning authorities should ensure that their assessment of and strategies for housing, employment and other uses are integrated, and that they take full account of relevant market and economic signals."
iii) Para 159, under "Housing" says;"Local planning authorities should have a clear understanding of housing needs in their area. They should:
- prepare a Strategic Housing Market Assessment to assess their full housing needs, working with neighbouring authorities where housing market areas cross administrative boundaries. The Strategic Housing Market Assessment [Plan-making | 39] should identify the scale and mix of housing and the range of tenures that the local population is likely to need over the plan period which:–– meets household and population projections, taking account of migration and demographic change;–– addresses the need for all types of housing, including affordable
iv) Para 182 first two bullets say;"The Local Plan will be examined by an independent inspector whose role is to assess whether the plan has been prepared in accordance with the Duty to Cooperate, legal and procedural requirements, and whether it is sound. A local planning authority should submit a plan for examination which it considers is "sound" – namely that it is:
- Positively prepared – the plan should be prepared based on a strategy which seeks to meet objectively assessed development and infrastructure requirements, including unmet requirements from neighbouring authorities where it is reasonable to do so and consistent with achieving sustainable development;
- Justified – the plan should be the most appropriate strategy, when considered against the reasonable alternatives, based on proportionate evidence;
- Effective – the plan should be deliverable over its period".
i) Para 005, which states that there is no one methodological approach, "But the use of this standard methodology set out in this guidance is strongly recommended…."
ii) Para 007, which states that LPAs should assess their development needs working together;
iii) Para 014, which states that assessing future housing need is not an exact science;
iv) Para 015 which refers to the DCLG housing projections and says these should "provide the starting point estimate of overall housing need."
v) Para 016, which refers to the housing projections being updated and that "Wherever possible, local needs assessments should be informed by the latest available information."
vi) Para 017 which refers to the DCLG projections but does say local plan makers may consider local circumstances.
Section 288 claim