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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 >> Sevenoaks District Court v Secretary of State for Housing Communities And Local Government  EWHC 3054 (Admin) (13 November 2020)
Cite as:  EWHC 3054 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Sevenoaks District Court
|- and -
|Secretary of State for Housing Communities and Local Government
Richard Moules (instructed by GLD) for the Defendant
Hearing dates: Thursday 3rd September 2020
Crown Copyright ©
Mr Justice Dove :
"2.1.5 Discussions have taken place with neighbouring authorities in the HMA to discuss assistance with any unmet need, but no authority has been in a position to assist SDC with its unmet need.
2.1.6 TWBC is currently preparing its second Regulation 18 version of the Draft Local Plan for consultation, which includes the vision, objectives and growth strategy, overarching strategic policies, place shaping policies and detailed Development Management Policies.
2.1.7 TWBC is also constrained by the Green Belt (22%) and the Area of Outstanding Natural Beauty (70%) as well as areas of flood risk and traffic congestion. The Regulation 18 Draft Local Plan identifies the need for 13,560 dwellings in accordance with the Standard Methodology. Taking into account homes already built since 2013 and sites benefiting from planning permission and allocations within the existing Site Allocations Local Plan, TWBC is aiming to allocate land to meet the remaining balance of 8,914 (Note: this is still subject to change following ongoing work) dwellings. TWBC is seeking to meet its full objectively assessed need across the borough through development at a number of settlements, strategic release of Green Belt at Paddock Wood/Capel to allow expansion of the settlement and a new garden settlement within the Green Belt at Tudeley also within Capel Parish.
2.1.8 It is understood that, at present, TWBC is unable to assist SDC with unmet housing need, due to the constraints on both local authorities, and their inability to meet housing needs beyond their own, irrespective of unmet needs elsewhere.
2.1.9 Consequently, both councils will continue to work together and identify the position as both TWBC and SDC prepare to review their Local Plan every 5 years.
TWBC and SDC will engage through the wider Duty to Cooperate forum with other neighbouring authorities outside the West Kent housing market area in relation to housing related matters, including unmet need, five year housing land supply, best fit HMAs, affordability, London growth, large scale developments and opportunities for meeting any unmet need.
TWBC and SDC to each undertake a 5 year review of their respective Local Plans."
"1.06 It is considered pertinent to note that if the request from SDC to meet its unmet need had been made at any point prior to the submission of TWBC's comments on Sevenoaks regulation 19 representations then those representations would have addressed this issue more fully."
The Hearing Position Statement goes on to record the observations made within the Statement of Common Ground and set out above and to indicate that the position from their perspective remained the same.
"13.5. It is evident that TMCB faces similar constraints and challenges to Sevenoaks District Council for that part of the Borough covered by the West Kent HMA. However, TMBC's response during plan-making has and continues to be significantly different to that of Sevenoaks District Council.
13.6. TMCB has responded positively to the Government's policy for plan-making by addressing in full its assessed need for housing plus some flexibility to adapt to rapid change. This is summarised in the TMBC Spatial Topic Paper. This has been challenging but TMBC understands that if suitable patterns of development are to be delivered and if the Local Plan is to positively address the acute need for housing, as demonstrated by the median housing affordability ratio, then sufficient sites need to be allocated for development to ensure there is no unmet need. This includes the removal of approximately 160 hectares of land from the Green Belt in the West Kent HMA to provide for residential development, as explained in the TMBC Green Belt Exceptional Circumstance Topic Paper.
13.7 Before addressing the matter of whether or not the unmet housing need could be accommodated in Tonbridge & Malling Borough it is important to first question whether it is reasonable for Sevenoaks District Council to expect TMBC to address it. Given the similarities between the two authorities (see above), TMBC considers that it is entirely inappropriate to as the Borough Council to accommodate unmet housing need in an area with the same constraints that have been dismissed by Sevenoaks District Council. It is important to bear in mind that the part of Tonbridge & Malling Borough falling within the West Kent HMA is wholly within the Green Belt (with the exception of the settlements not washed over by the designation).
13.8 If Sevenoaks District Council had adopted a similar positive approach to meeting the housing development needs of their area in full, it is possible that there would be significantly less or no unmet need to consider. It is unreasonable to expect TMBC to not only meet their assessed need for housing in full but to accommodate unmet housing need from Sevenoaks District Council who are facing similar constraints.
13.19 To conclude, it would be unreasonable to expect Tonbridge & Malling Borough Council to accommodate unmet housing need from Sevenoaks District Council given that TMBC is facing very similar constraints and challenges and is planning to address in full its own assessed housing need. Not only would it be unreasonable but factors including Housing Market Areas, market capacity and infrastructure mean that TMBC could not accommodate the identified unmet housing need."
"6.1 Sevenoaks and Tunbridge Wells are both planning to meet their OAN as determined by the joint SHMA which was updated in 2017. In Sevenoaks the OAN of 11,740 (578 dpa) compares with an indicative figure of 13,960 (698 dpa) based on the government's standardised methodology. In Tunbridge Wells the SHMA gives an OAN of 696dpa, which is consistent with the government's indicative figure of 692 dpa using the proposed standard methodology.
6.2 The situation in Tonbridge and Malling is more complex. The evidence base, which includes an up to date SHMA covering 2 housing market areas, gives an OAN of 696 dpa. This is significantly lower than the indicative figure of 859 dpa using the proposed standardised methodology. Members have agreed to continue with 696 dpa figure. The Council accepts the standardised methodology and will reflect this as national policy in its Local Plan. However it proposes to demonstrate that the higher figure is undeliverable based on past trends and capacity issues. This position will be supported by evidence including the housing deliverability study prepared by G L Hearn in September 2017. The Council's concerns are clarified in more detail in its consultation response to Planning for the Right Homes in the Right Places.
6.3 The emerging Tonbridge and Malling Local Plan, if it continues to propose a housing supply which is lower than the standardised OAN, clearly presents a risk to finalising an agreed SoCG. Whilst at present neither Sevenoaks or Tunbridge Wells will require Tonbridge and Malling to accept unmet need, it is possible that the reverse may apply. Even if all three Councils sign up to a SoCG which includes a lower housing figure for Tonbridge and Malling than the standard methodology indicates, this could be undermined when its Local Plan is examined.
8.4 The greatest risk to this SoCG is the decision by Tonbridge and Malling to continue plan for a level of housing supply which is below the OAN identified by the government's standard methodology. As Tonbridge and Malling takes its Local Plan forwards it will be relying on evidence which states that capacity and delivery issues prevent it from states that capacity and delivery issues prevent it from meeting the higher OAN.
8.5 Whilst both Sevenoaks and Tunbridge Wells are aiming to meet their standard methodology OANs, both are heavily constrained by green belt and infrastructure issues and are unlikely to be capable of accommodating unmet need from Tonbridge and Malling. This pilot project is not the appropriate place to address this matter in detail. However if the final SoCG is to have any real meaning and to be robust in supporting the three Local Plans there will need to be some hard talking within the group on this matter. This is a potential showstopper in terms of the utility of the SoCG and its capability of serving its desired purpose"
"6.1 During the short lifespan of this pilot project there have been several changes to both the policy background, for example the revised draft of the NPPF issued for consultation on 5 March 2018 and to the emerging evidence base which will support the three Local Plans. Consequently the three Councils have not been in a position to identify firm figures for unmet need or to have any meaningful discussion on this cross boundary issue. The current situation, at the end of the pilot project, is as follows.
6.2 In Sevenoaks the OAN of 12,400 compares with an indicative figure of 13,960 based on the government's standardised methodology. With Regulation 19 submission planned to take place in early 2019 it likely to fall outside the NPPF transition period, therefore the higher figure will apply. However the district is highly constrained, with 93% of the district lying within the Green Belt and 60% within AONBs.
6.3 The Council is currently examining the potential of releasing some Green Belt land where a convincing exceptional circumstances case is made. This would mean that any proposed development would need to deliver evidenced social and community benefits as well as housing. Sites where this might be the case will be the subject of Regulation 18 consultation. This may increase the housing land supply but it remains unlikely that Sevenoaks DC Tonbridge and Malling DC will be able to meet its housing need in full.
Tonbridge and Malling BC
6.4 The evidence base for the Tonbridge and Malling Local Plan, which includes an up to date SHMA covering two housing market areas, gives an OAN of 696 dpa. This is significantly lower than the indicative figure of 859 dpa using the proposed standardised methodology. However the position has changed since the pilot project began with the revised NPPF draft proposing a transitional period for introducing the standardised methodology of assessing housing need. Provided the Regulation 19 submission can be made within the transition period, as proposed by the Council, then the lower locally derived OAN can be used. This level of housing growth is considered deliverable.
Tunbridge Wells BC
6.5 When the pilot project commenced Tunbridge Wells BC was planning to meet its locally derived OAN as determined by the joint SHMA which was updated in 2017. The SHMA sets an OAN of 696 dpa for Tunbridge Wells, which is consistent with the government's indicative figure of 692 dpa using the proposed standard methodology. Recently updated evidence on strategic flood risk suggests that some re appraisal may be necessary, but the Council is still endeavouring to ensure that it can meet its own housing need.
6.6 Each of the Councils has a clear figure for its housing need, but whilst Tonbridge and Malling BC is confident that it can meet its need, Sevenoaks DC and Tunbridge Wells BC have not yet completed the work needed to determine whether or not they can meet their housing need. Thus the Councils are not yet in a position to reach agreement on their housing needs. The councils are not yet in a position to reach agreement on the matter of housing supply."
"The Duty to Cooperate
Sevenoaks haven't sent formal letters asking other authorities to accommodate unmet need. They say they don't want to, because no authorities are willing to help with unmet need and asking the question would sour relations with them. Some neighbouring authorities such as Tandridge may also have unmet need. There is a SoCG with other authorities and a MOU with Maidstone, but the Council did not say that there is constructive engagement among the neighbouring authorities to resolve the issue, nor could they point to any ongoing strategic level cross boundary planning to look at how identified needs could be accommodated."
"If the OAN really could not be accommodated within the District, I said that there should be clear evidence of positive engagement among the group of neighbouring authorities in order to resolve the issue on a cross boundary basis. Currently, despite the MoU and SoCGs, this did not appear to exist in a positive form. I said that any Inspector would look closely at this in regard to whether the Duty to Cooperate had been fulfilled."
"Sevenoaks asked whether MHCLG meets with LPAs on a regular basis following an Advisory Visit or whether there were particular concerns with the emerging Sevenoaks plan. MHCLG explained that following the AV the Department had been made aware that there were some potentially significant issues with housing numbers and Duty to Co-operate, and constraints including Green Belt. Given these could be potential 'showstoppers' MHCLG wanted to talk through the issues, find out what further work Sevenoaks may be doing in respect of these and to discuss whether there is any assistance MHCLG could provide as the authority prepares its plan for submission.
In terms of the Duty to Co-operate, Sevenoaks explained they had met regularly with neighbouring authorities at Officer and Member level to discuss x-boundary issues, of which housing need was a standing item on the agenda. In addition, a regular Kent-Planning Officers Group was held at Kent County Council. This operates along similar lines to the ALBPO forum in London and serves to update colleagues on Local Plan preparation. Statements of Common Ground are currently being prepared with neighbours on strategic cross-boundary matters, including housing need.
DR advised that the balance between protecting the environment and meeting housing needs was a planning judgement that had to be made locally. SH set out that the approach the LPA took would need to be justified, both in terms of why the authority was unable to meet its own needs and the reasons behind neighbouring authorities not being asked to accommodate some of Sevenoaks needs."
"The Council is of the view that all authorities bordering Sevenoaks, and Kent County Council, have engaged actively and on an on-going basis to meet the provisions of the Duty to Co-operate. In particular, Statements of Common Ground (SoCGs) are in the process of being agreed to formally clarify if it is possible to meet unmet housing needs from adjoining areas. Notwithstanding the provisions of the SoCG and for the sake of completeness, I write to formally ask if is in a position to meet any of Sevenoaks' unmet housing need as outlined above. In the event that this is not possible, I would also be grateful for your views on the preparation of a joint sub-regional strategy to address future housing requirements."
"2.2 The discussion focussed on the implications of the DtC for the soundness assessment of the SLP. At the time of the meeting, the Council's intention was to submit the SLP for examination at the end of the month (it was subsequently submitted on 30 April 2019). The discussion included a review of advice provided by Laura Graham of IPe and Jonathan Bore from the Planning Inspectorate (PINS). SDC feels that there is a degree of inconsistency between the PINS advice and that provided by IPe. SDC believe that the advice from PINS is based on a misunderstanding of the approach being adopted by the SDC. In the view of the SDC, PINS failed to fully appreciate that the council attempts unmet housing need as an exceptional circumstance justifying consideration of Green Belt (GB) land release. What PINS calls a "Council imposed impediment" (the provision of infrastructure for the existing community) is not the defining exceptional circumstance consideration it is simply the logical requirement that any development in the GB needs to be accompanied by adequate infrastructure. In other words, SDC believes that PINS has placed too much emphasis on the infrastructure point and not enough on the unmet need consideration."
"3.3 The message regarding the importance of the DtC and the way it is dealt with at local plan examinations was repeated. All parties present appreciate how important the local duty is and how it has the potential to derail examinations. Each of the councils present outlined the position they are in at present regarding their development plans. From the discussion, it is clear that none of the authorities present are in a position to help meet any unmet housing need generated by SDC. In fact, most of the authorities believe that they are unlikely to be able to meet their own needs. The discussion thus confirmed and reinforced the contention made in the Submission version of the SLP that the Council is unable to meet its own needs and cannot rely on the DtC to resolve the problem. The importance of preparing a clear and convincing narrative for the forthcoming SDC local plan examination was again stressed.
3.4 The importance of continuing to seek to meet development needs in West Kent through cooperative strategic working was discussed. In this regard, the need for a strategic approach to infrastructure was emphasised. KH explained the importance of getting member involvement and buy-in to any strategic work and that the more formal the process, the more likely it was to convince a local plan examiner that the councils are doing all they can to use the DtC effectively. Cllr Piper expressed severe reservations about the likelihood of effective strategic planning because of what he described as an inconsistency between the political message provided by the government regarding the GB and the guidance in the NPPF. KH pointed out that under the DtC there is nothing to stop local authorities undertaking joint strategic planning of the sort that previously happened in the South East through SERPLAN (London and South East Regional Planning Conference). KH also explained that the policy in the NPPF makes it clear that where there are exceptional circumstances local authorities ca revise GB boundaries, but that this must be done through their local plans and not through the development management process."
"17. I acknowledge that the Council has prepared a joint evidence base with other local planning authorities which underpins many of the policies in the Plan, including a Strategic Housing Market Assessment (SHMA) with Tunbridge Wells Borough Council. The SHMA examines the overall housing need in the West Kent Housing Market Area (HMA), need from different sizes of homes (both market and affordable) and needs for particular types of homes, particularly from the growing older population. The assessment of housing need does not include any specific provision for meeting unmet needs of adjoining areas, which the SHMA says will need to be considered through the DtC. In respect of compliance with the DtC, my concern relates to the lack of ongoing, active and constructive engagement with neighbouring authorities in an attempt to resolve the issue of unmet housing need and the inadequacy of strategic cross boundary planning to examine how the identified needs could be accommodated. The joint evidence base produced by the Council in co-operation with others is not, therefore, of direct relevance to this matter as it does not address unmet housing needs.
18.The Council sets out the nature and timing of the engagement and cross boundary planning that was undertaken in its DtC Statement and Appendices and in Appendix 1: Schedule A attached to its letter, dated 18 November 2019, with the minutes of most of these meetings provided in the DtC Statement. This indicates that a number of meetings took place between the Council and its neighbouring authorities, along with other prescribed bodies, during the preparation of the Plan. These include meetings of the West Kent DtC group and the West Kent Statement of Common Ground (SoCG) Pilot Programme group.
19. The minutes of the West Kent DtC meeting, on 2 August 2017, which was held the day before consultation began on the Sevenoaks Local Plan Issues and Options (Regulation 18), do not mention the unmet housing need in Sevenoaks District, nor do they make reference to any discussion relating to how those unmet needs could be accommodated. The DtC Forum notes, on 23 August 2017, do not make any reference to the position at that time in Sevenoaks District Council. The summary of the initial meeting of the West Kent SoCG group with planning consultants, Intelligent Plans and Examinations (IPE), held on 22 January 2018, set out in the Facilitator's Note, dated 3 April 2018, does not mention the unmet housing need in Sevenoaks District, nor does it make reference to any discussion relating to how those unmet needs could be accommodated.
20. The notes of the SoCG Pilot Programme: West Kent Group, on 12 February 2018, indicate that the difficulties faced by Sevenoaks were briefly discussed in respect of Objectively Assessed Need [OAN], but state that Sevenoaks 'is testing options to assess the way forward'. The summary of the meeting, held on 14 March 2018, set out in the Facilitator's Note, dated 3 April 2018, does not mention the unmet housing need in Sevenoaks District, nor does it make reference to any discussion relating to how those unmet needs could be accommodated. The Facilitator's Note does, however, refer to a 'table of draft key strategic cross boundary issues' which had emerged through discussions, including the 'need to address the matter of unmet need in the HMA', which was acknowledged to be the most significant issue. It goes on to say that 'Sevenoaks and Tunbridge Wells are both planning to meet their OAN as determined by the joint SHMA which was updated in 2017'.
21.The Council has since stated, in Appendix 1: Schedule A to its letter, dated 18 November 2019, that the Facilitator's Note from the meeting of the West Kent SoCG Pilot Project on 3 April 2018 was incorrect, as it referred to Sevenoaks District Council planning to meet its OAN in full. The Council refers to all three HMA authorities commenting in April 2018 that this statement was incorrect, but that a final version of this note was not sent through by the Planning Advisory Service [PAS] in 2018. The Council contacted the Facilitator on 27 September 2019, during the Hearing sessions, and a finalised note, dated 10 April 2018, was duly issued. The Council submitted the original Facilitator's Note twice in its DtC Statement, however, no mention was made in that document about the inaccuracy of those minutes. Nor was any amended version sought from the Facilitator until the matter was raised during the Hearing session. Not only have changes been made to paragraph 6.3 of that document, which now says that 'it remains unlikely that Sevenoaks District Council will be able to meet its housing need in full', but there are additional paragraphs inserted, as well as changes/additions made to other paragraphs.
22. Significantly, paragraph 6.1 of the amended version of the Facilitator's Note now says that 'the three Councils have not been in a position to identify firm figures for unmet need or to have any meaningful discussion on this cross boundary issue'. Paragraph 6.6 concludes that, 'each of the Councils has a clear figure for its housing need, but whilst Tonbridge and Malling is confident that it can meet its own need, Sevenoaks and Tunbridge Wells have not yet completed the work needed to determine whether or not they can meet their housing need. Thus, the Councils are not yet in a position to reach agreement on the matter of housing supply'. As such, it is apparent that, in April 2018, the three Councils were not aware of the extent of any unmet need. Consequently, while the evidence, up to this point, indicates that the Council was engaging in discussion, it does not demonstrate that constructive engagement was taking place on the strategic matter of unmet housing needs.
23. The minutes of the West Kent DtC meeting on 11 September 2018, the day after the consultation period had ended on the Regulation 18 Plan, do not mention the unmet housing need in Sevenoaks District, nor do they make reference to any discussion relating to how those unmet needs could be accommodated. The first time that the minutes of the DtC meetings refer to addressing the unmet need in Sevenoaks is at the DtC meeting between Sevenoaks District Council and Tonbridge and Malling Borough Council on 13 March 2019, when it is noted that 'officers discussed the potential requirement for a follow up letter to request that neighbouring authorities assist with Sevenoaks' unmet need, where it is practical to do so'. This was at a very late stage in the Plan preparation process, following the Regulation 19 consultation on the Plan and only around 7 weeks prior to the submission of the Local Plan for Examination on 30 April 2019.
24. Although the DtC statement indicates that Officer and Member level meetings were held with neighbouring authorities, and a joint evidence base with neighbouring authorities in the West Kent HMA was produced, the minutes of the meetings provide no substantial evidence that the Council sought assistance from its neighbours in meeting its unmet housing need or in devising an agreed approach for accommodating this unmet need, before the publication of the Regulation 19 Plan. Indeed, it is unclear from the notes of these meetings when unmet need was first discussed. Housing was appropriately identified as a key strategic cross boundary issue, but the evidence from the notes of these meetings does not indicate that there has been ongoing, active and constructive engagement with neighbouring authorities with regard to Sevenoaks' unmet housing need.
25. At the Hearing sessions, concerns were expressed by participants about the lack of co-operation between the Council and neighbouring authorities to address the issue of unmet housing need. However, I note that, neighbouring authorities have made positive comments about engagement overall and have not said that the Council has failed the DtC. Other parties have advanced similar comments. Nevertheless, the Hearing Position Statements (HPSs) submitted by both Tonbridge and Malling Borough Council and Tunbridge Wells Borough Council do raise matters of concern about unmet housing need in the District and the engagement between the authorities in this respect, particularly that the Council did not formally raise this as an issue with its neighbours until after the public consultation on the Regulation 19 Plan was completed. This is confirmed in the Hearing Position Statements provided by the other two Councils within the HMA.
26. In paragraph 13.2 of its HPS, Tonbridge and Malling Borough Council confirms that during the consultation on the Regulation 18 and Regulation 19 versions of the Tonbridge and Malling Borough Local Plan, Sevenoaks District Council did not make a formal request for Tonbridge and Malling to address the unmet need in Sevenoaks. Furthermore, it goes on to say that despite Officers from Tonbridge and Malling Borough Council and Sevenoaks District Council engaging on a regular basis to discuss cross-boundary strategic matters, Tonbridge and Malling Borough Council Officers 'did not receive any formal requests to address unmet housing need' from Sevenoaks District Council.
27. The Regulation 19 Tonbridge and Malling Local Plan was subject to public consultation between 1 October and 19 November 2018. The Council says that it became aware of the extent of its unmet need following the consideration of the representations to the Regulation 18 version of the Sevenoaks District Local Plan, which ended on 10 September 2018. However, the Council did not request that Tonbridge and Malling Borough Council considered the possibility of accommodating unmet housing need from Sevenoaks during the Regulation 19 consultation on the Tonbridge and Malling Local Plan. This highlights the lack of engagement with this neighbouring authority on this issue at a crucial stage in the Plan preparation process.
28. In paragraph 1.04 of its HPS, Tunbridge Wells Borough Council confirms that it received communication from Sevenoaks District Council on 11 April 2019 formally asking if it would be in a position to meet any of its unmet housing need. This was after the Regulation 19 consultation and just before the Plan was submitted for Examination, leaving no time for a proper consideration of the issues by either Council and for Sevenoaks to consider whether or not its Plan remained appropriate in the knowledge that its unmet housing needs would not be provided for in neighbouring authority areas. Indeed, at paragraph 1.06, Tunbridge Wells Borough Council states that if this request had been made at any point prior to the submission of its comments on the Regulation 19 version of the Plan, then its response would have addressed this issue more fully.
29. I appreciate that these neighbouring authorities say that there has been regular, constructive and cooperative liaison between the three West Kent authorities, including the preparation of joint evidence base studies. However, the evidence before me, including the minutes of meetings and the HPSs, does not demonstrate that there has not been active, constructive or on-going engagement in respect of unmet housing need."
"32. These SoCGs were prepared too late to influence the preparation of the Plan. Indeed, in an email to MHCLG, dated 15 March 2019, the Council says that it 'is in the process of preparing SoCGs to address, amongst other things, the issue of unmet need.' However, these SoCGs were completed following the submission of the Plan for Examination. As a result, the SoCGs set out the issues to be addressed following the submission of the Plan rather than the progress made to address them prior to submission. They imply that these matters will be dealt with in any review of the Plan. However, the Duty required by the Act applies specifically to plan preparation, and plan preparation ends when the plan is submitted for Examination.
33. For these reasons, the SoCGs do not demonstrate that effective and joint working has been undertaken, particularly in respect of unmet housing need, nor do they document the progress made in co-operating to address this.
34. I acknowledge that discussions have taken place as part of the West Kent Leaders' Forum with regards to the preparation of a sub-regional strategy, but this represents engagement in relation to a solution in the future, not the submitted Plan. At the DtC Workshop, on 24 April 2019, the group discussed the potential for a sub-regional strategy to address any unmet needs across the area, with this approach having been discussed through Kent Leaders' meetings. However, this approach is at a very early stage and this, along with the agreed actions in the SoCGs, relate to proposed joint working in the future, which is not something that is relevant to the consideration of the DtC in relation to the preparation of this Plan."
"35. The Council refers to the extent of unmet housing need becoming apparent once a full assessment of the comments received on the Regulation 18 consultation was undertaken, which would have been after 10 September 2018. The Regulation 19 version of the Local Plan was considered by the Council's Planning Advisory Committee on 22 November 2018 and by Cabinet on 6 December 2018. The Council says, in its letter dated 18 November 2019, that it 'could have gone back to neighbours at this point', but decided not to, as it was felt that, as discussions had already indicated that an unmet need of 600 dwellings could not be accommodated, 'it was therefore extremely unlikely that a higher unmet need would be met elsewhere'. Nevertheless, the minutes of meetings with neighbouring authorities prior to this, which I refer to in paragraphs 19 to 22 above, either do not mention the unmet housing need or the extent of any unmet housing need in Sevenoaks District. There is no evidence, therefore, to support the Council's statement that discussions had already indicated that an unmet need of 600 dwellings could not be accommodated in the neighbouring authorities.
36. I note the comments of Tonbridge and Malling Borough Council, made in a letter, dated 1 February 2019, in response to the Regulation 19 consultation on the Plan that 'all three West Kent Authorities confirmed that they were seeking to meet as much of their needs as possible and acknowledged the practical difficulties of taking any unmet need from each other' at the DtC meeting on 11 September 2018, despite the minutes not recording this. Tonbridge and Malling Borough Council's response to the Regulation 19 consultation goes on to say that 'at that time the draft Sevenoaks Local Plan included options that could have met the vast majority of its need for housing. The best case scenario resulting in approximately 600 dwellings of unmet need across the Plan period.' However, there is no evidence from the minutes of the DtC meetings that even this level of unmet need had been discussed in a meaningful way.
37, The full extent of unmet need only became apparent to the Council following the consideration to the responses of the Regulation 18 consultation, after the DtC meeting on 11 September 2018, and during the preparation of the Regulation 19 Plan. Under the DtC, it is reasonable to expect the Council to have contacted its neighbours as soon as it became clear that it would not be able to accommodate its own needs. This would have allowed the authorities to engage constructively in an attempt to resolve this issue prior to the publication of the Plan at the Regulation 19 stage. However, there is no evidence to show that this occurred. Indeed, if the engagement had occurred between the Regulation 18 and Regulation 19 versions of the Plan, once the Council was aware of the level of unmet need, it might have resulted in a more positive outcome. Given earlier notice and more time for in-depth engagement, discussion and consideration, neighbouring authorities may have been able to accommodate some of Sevenoaks' unmet need. Alternatively, if the neighbouring authorities had not been able or willing to meet these needs, the Council would have had the time to formally reconsider its own constraints to reach a final view on whether or not it could appropriately fully meet its own housing needs in the knowledge that they would not be met outside the District. This could have included a reconsideration of the balance to be struck between planning policies that might constrain development and the merits of providing sufficient housing to meet identified needs. Ultimately, this process may, or may not, have led to the same outcome. However, it is not possible for me to know whether this would have been the case because effective and constructive engagement on this issue did not take place.
38. From the evidence before me, therefore, it is apparent that the Council did not engage with its neighbouring authorities on this matter at the appropriate time.
39. It is noted that neighbouring authorities have not indicated any willingness to take unmet need from Sevenoaks, in part due to the extent of Green Belt, but proper engagement at the right time would have enabled all three authorities and others in the wider area to properly grapple with the issues arising from unmet housing need. There is, of course, no guarantee that such an approach would have resulted in arrangements being made for Sevenoaks' housing needs to be met in full. However, in my view, earlier and fuller proactive engagement on this crucial issue, in accordance with national policy, would have been significantly more likely to result in an effective strategy for meeting Sevenoaks' unmet need."
"42. At this Workshop, the Council set out what it considered to be the unmet need of around 1,900 dwellings in its Plan to be submitted for Examination. The Note on the DtC and the Local Plan, prepared by IPE, dated 7 May 2019, following the PAS Workshop, was not submitted as part of the Council's DtC Statement. This note concludes that 'none of the authorities present is in a position to help meet any unmet housing need generated by Sevenoaks District and it stresses the importance of continuing to meet development needs in West Kent through cooperative strategic working'.
43. The Council suggests that the PAS Note provides evidence that a solution to address unmet need now does not exist through the DtC. However, the PAS Note does not set out a detailed assessment of how the DtC has been complied with. Furthermore, the PAS Workshop was undertaken at a very late stage in the Local Plan preparation process and if the engagement had occurred as soon as the Council was aware of the broad level of unmet need and, in any event, in advance of the Regulation 19 version of the Local Plan, it might have resulted in a more positive outcome. Alternatively, it may have been that the Council's conclusions were correct and that the unmet need could not be addressed by neighbouring authorities. However, on the evidence before me, I am unable to conclude that the issue of addressing unmet need had been given adequate consideration. Whether or not there is a cross boundary solution to unmet need is not a requirement of the DtC. The Duty is to engage constructively, actively and on an on-going basis and, on the evidence before me, I am unable to conclude that this has taken place.
44. The Council says that had the peer review process, which was set up to run alongside the Regulation 19 consultation, raised significant concerns, the Council would not have submitted the Plan. Nevertheless, significant concerns were raised in relation to the DtC at the Advisory Visit carried out by the Planning Inspectorate in February 2019, as set out in the note of this meeting.
44. The visiting Inspector noted that the Council had not sent formal letters asking other authorities to accommodate unmet need and that it could not point to any ongoing strategic level cross boundary planning to look at how identified needs could be accommodated. He went on to advise that, if the OAN really could not be accommodated within the District, then there should be clear evidence of positive engagement among the group of neighbouring authorities in order to resolve the issue on a cross boundary basis and that, despite the Memorandum of Understanding and SoCGs, this did not appear to exist in a positive form. These issues were not adequately resolved before submission.
45. I understand the Council's reasons for seeking the advice from PAS and its hope that this would have identified potential 'showstoppers' in advance of submission. However, it is apparent that the PAS Workshop would not have benefitted from the full extent of evidence that is before me, particularly given that the DtC Statement was not submitted until May 2019. Nor would it have had the benefit of the time available to an Inspector for the examination of that detailed and complex evidence or the discussion at the Hearing sessions.
46. The Council submitted its note of the DtC Workshop in Appendix 4 of its DtC Statement in which it states that 'KH advised that, in his view, Sevenoaks District Council has done all it can and is able to demonstrate that it has satisfied the DtC requirement.' However, the Note of the same meeting prepared by IPE, does not state that the DtC has been met or that KH advised that this was the case.
47. Moreover, although it is reasonable for any authority preparing a local plan to seek advice from outside bodies in the way that the Council did, doing so cannot ever provide a guarantee that the Plan will, at its formal Examination, be found to be legally compliant. In any event, given the timing of the peer review, I consider that it was held far too late in the preparation process for it to be effective."
"49. The Secretary of State wrote to the Planning Inspectorate, on 18 June 2019, in which he stressed to Inspectors the importance of being pragmatic in getting plans in place that, in line with paragraph 35 of the NPPF, represent a sound plan for the authority.
50. The Secretary of State's letter refers to a previous letter written in 2015 by the Rt Hon Greg Clark. This earlier letter also stresses the importance of Inspectors working in a pragmatic way with Councils towards achieving a sound local plan, by finding plans sound conditional upon a review in whole or in part within five years of adoption, giving Councils the option to undertake further work to address shortcomings identified at Examination and highlighting significant issues to Councils very early on and giving Councils the full opportunity to address issues.
51. In accordance with this advice, I have worked in a pragmatic way with the Council towards achieving a sound Plan as far as practicable. However, given that it is a failure in the legal DtC that I have identified, this could not be resolved by finding the Plan sound conditional upon a review, nor does the Council have the option to undertake further work, as any failure in the DtC cannot be rectified following submission. Once I had considered all of the evidence presented to me in writing and at the Hearing sessions in relation to the DtC, I immediately notified the Council and cancelled future Hearings. I also gave the Council the opportunity to provide any additional evidence relating to the DtC undertaken prior to the submission of the Plan for Examination. Furthermore, had it been possible for the Examination to proceed, if, for example, the DtC had been complied with, I would have been pragmatic in considering any Main Modifications required to make the Plan sound. However, there is no scope within the Examination process to correct a failure to comply with the DtC following submission of the Plan.
52. The DtC Appendices that the Council has submitted in response to my letters include several statements and letters from neighbouring authorities and Parish Councils, as well as from Representors with an interest in the Plan. I have considered their comments carefully, however, none provides any substantial evidence which would lead me to a different view.
53. For the reasons set out above the DtC set out in Section 33A has not been complied with."
"20. Independent examination
(1) The local planning authority must submit every development plan document to the Secretary of State for independent examination.
(2) But the authority must not submit such a document unless-
(a) they have complied with any relevant requirements contained in the regulations under this Part, and
(b) they think the document is ready for independent examination.
(4) The examination must be carried out by a person appointed by the Secretary of State.
(5) The purpose of an independent examination is to determine in respect of the development plan document-
(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation.
(7) Where the person appointed to carry out the examination-
(a) has carried it out, and
(b) considers that, in all circumstances, it would be reasonable to conclude-
(i) that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, and
(ii) that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation, the person must recommend that the document is adopted and given reasons for the recommendation.
(7A) Where the person appointed to carry out the examination (a) has carried it out, and
(b) is not required by subsection (7) to recommend that the document is adopted, the person must recommend non-adoption of the document and give reasons for the recommendation.
(7B) Subsection (7C) applies where the person appointed to carry out the examination-
(a) does not consider that, in all circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in subsection (5)(a) and is sound, but
(b) does consider that, in all circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation.
(7C) If asked to do so by the local planning authority, the person appointed to carry out the examination must recommend modifications of the document that would make it one that-
(a) satisfies the requirements mentioned in subsection (5)(a), and
(b) is sound."
"33A Duty to co-operate in relation to planning of sustainable development
(1) Each person who is
(a) a local planning authority,
(b) a county council in England that is not a local planning authority, or
(c) a body, or other person, that is prescribed or of a prescribed description, must co-operate with every other person who is within paragraph (a), (b) or (c) or subsection (9) in maximising the effectiveness with which activities within subsection (3) are undertaken.
(2) In particular, the duty imposed on a person by subsection (1) requires the person
(a) to engage constructively, actively and on an ongoing basis in any process by means of which activities within subsection (3) are undertaken, and
(b) to have regard to activities of a person within subsection (9) so far as they are relevant to activities within subsection (3).
(3) The activities within this subsection are
(a) the preparation of development plan documents,
(b) the preparation of other local development documents,
(c) the preparation of marine plans under the Marine and Coastal Access Act 2009 for the English inshore region, the English offshore region or any part of either of those regions,
(d) activities that can reasonably be considered to prepare the way for activities within any of paragraphs
(a) to (c) that are, or could be, contemplated, and
(e) activities that support activities within any of paragraphs (a) to (c), so far as relating to a strategic matter.
(4) For the purposes of subsection (3), each of the following is a "strategic matter"
(a) sustainable development or use of land that has or would have a significant impact on at least two planning areas, including (in particular) sustainable development or use of land for or in connection with infrastructure that is strategic and has or would have a significant impact on at least two planning areas, and
(b) sustainable development or use of land in a two-tier area if the development or use
(i) is a county matter, or
(ii) has or would have a significant impact on a county matter."
"Maintaining effective cooperation
24. Local planning authorities and county councils (in two-tier areas) are under a duty to cooperate with each other, and with other prescribed bodies, on strategic matters that cross administrative boundaries.
25. Strategic policy-making authorities should collaborate to identify the relevant strategic matters which they need to address in their plans. They should also engage with their local communities and relevant bodies including Local Enterprise Partnerships, Local Nature Partnerships, the Marine Management Organisation, county councils, infrastructure providers, elected Mayors and combined authorities (in cases where Mayors or combined authorities do not have plan-making powers).
26. Effective and on-going joint working between strategic policy-making authorities and relevant bodies is integral to the production of a positively prepared and justified strategy. In particular, joint working should help to determine where additional infrastructure is necessary, and whether development needs that cannot be met wholly within a particular plan area could be met elsewhere.
27. In order to demonstrate effective and on-going joint working, strategic policy making authorities should prepare and maintain one or more statements of common ground, documenting the cross-boundary matters being addressed and progress in cooperating to address these. These should be produced using the approach set out in national planning guidance, and be made publicly available throughout the plan-making process to provide transparency."
"35. Local plans and spatial development strategies are examined to assess whether they have been prepared in accordance with legal and procedural requirements, and whether they are sound. Plans are 'sound' if they are:
a) Positively prepared providing a strategy which, as a minimum, seeks to meet the area's objectively assessed needs and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development;
b) Justified an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence;
c) Effective deliverable over the plan period, and based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground; and
d) Consistent with national policy enabling the delivery of sustainable development in accordance with the policies in this Framework."
"Are strategic policy-making authorities required to reach agreement on strategic matters, and what should an authority do if they are unable to secure these agreements?
Strategic policy-making authorities should explore all available options for addressing strategic matters within their own planning area, unless they can demonstrate to do so would contradict policies set out in the National Planning Policy Framework. If there they are unable to do so they should make every effort to secure the necessary cooperation on strategic cross boundary matters before they submit their plans for examination. Authorities are not obliged to accept needs from other areas where it can be demonstrated it would have an adverse impact when assessed against policies in the National Planning Policy Framework.
Inspectors will expect to see that strategic policy making authorities have addressed key strategic matters through effective joint working, and not deferred them to subsequent plan updates or are not relying on the inspector to direct them. Where a strategic policy-making authority claims it has reasonably done all that it can to deal with matters but has been unable to secure the cooperation necessary, for example if another authority will not cooperate, or agreements cannot be reached, this should not prevent the authority from submitting a plan for examination. However, the authority will need to submit comprehensive and robust evidence of the efforts it has made to cooperate and any outcomes achieved; this will be thoroughly tested at the plan examination."
"109. The duty to co-operate imposed by section 33A applies (so far as relevant in this case) in respect of the preparation of development plan documents "so far as relating to a strategic matter" (subsection (3)), as defined in subsection (4) ("sustainable development or use of land that has or would have a significant impact on at least two planning areas, [etc]"). The question of whether development or use of land would have a significant impact on two planning areas is a matter of planning judgment.
110. The obligation (see subsection (1)) is to co-operate in "maximising the effectiveness" with which plan documents can be prepared, including an obligation "to engage constructively [etc]" (subsection (2)). Deciding what ought to be done to maximise effectiveness and what measures of constructive engagement should be taken requires evaluative judgments to be made by the person subject to the duty regarding planning issues and use of limited resources available to them. The nature of the decisions to be taken indicates that a substantial margin of appreciation or discretion should be allowed by a court when reviewing those decisions.
111. The engagement required under subsection (2) includes, in particular, "considering" adoption of joint planning approaches (subsection (6)). Again, the nature of the issue and the statutory language indicate that this is a matter for the judgment of the relevant planning authority, with a substantial margin of appreciation or discretion for the authority.
112. WCC was required to have regard to the guidance about co-operative working given in the NPPF: subsection (7).
113. The limited nature of the role for the court in a case like the present is reinforced by the structure of the legislation in relation to review of compliance with the duty to co-operate under section 33A . The Inspector is charged with responsibility for making a judgment whether there has been compliance with the duty: section 20(5)(c) of the 2004 Act. His task is to consider whether "it would be reasonable to conclude" that there has been compliance with the duty: section 20(7)(b)(ii) and (7B)(b). A court dealing with a challenge under section 113 of the Act to the judgment of an inspector that there has been such compliance is therefore limited to review of whether the inspector could rationally make the assessment that it would be reasonable to conclude that there had been compliance by a planning authority with this duty. It would undermine the review procedures in the Act, and the important function of an inspector on an independent examination, if on a challenge to a plan brought under section 113 the court sought to circumvent this structure by applying any more intrusive form of review in its own assessment of the underlying lawfulness of the conduct of the planning authority itself. A rationality standard is to be applied in relation to the decision made by the Inspector and in relation to the underlying decision made by WCC."
"58. In agreement with Sales J I consider that:
(i) The question posed by section 20(7B)(b) of PCPA 2004 is a matter for the judgment of the Inspector;
(ii) The Court's role is limited to reviewing whether the Inspector could rationally make the assessment that
(ii) The Court's role is limited to reviewing whether the Inspector could rationally make the assessment that it would be "reasonable to conclude" that the LPA had complied with section 33A ;
(iii) It would undermine the structure of PCPA 2004 and the procedure it provides for review by an independent Inspector if, on a challenge made under section 113 , the Court sought to apply a more intrusive form of review in its assessment of the underlying lawfulness of the LPA's conduct or performance; form of review in its assessment of the underlying lawfulness of the LPA's conduct or performance;
59. The challenge under ground 2 is therefore directed to the Inspector's report, in particular paragraphs 10 to 14 where he stated:
"10. On the first day of the Hearing a submission was made by a representor to the effect that the Council had failed in relation to the DtC [the duty to co-operate]. This was discussed in some detail at the Hearing, and in public correspondence between the representor, the Council and myself. The most important element of this submission was that the Council's identified affordable housing need figure is 292 dwellings per annum (d.p.a.) (clarified by MM/5/1 ), with certain caveats, whereas the expected provision is 206 d.p.a. The Council put forward reasons for this position, but the DtC issue relates to the fact that the Council had not asked neighbouring authorities whether they could accommodate some or all of the identified shortfall.
11. There is nothing to suggest the extent to which any shortfall in affordable housing provision within Test Valley would lead to displaced demand affecting some or all of the eight adjoining authorities.
12. The objective of the DtC is to maximise the effectiveness of the plan making process. In this case the overall manner in which the Council has worked with other authorities, particularly but not exclusively in the southern part of the Borough, is impressive. In the light of their considerable experience, Council officers presented me with a very clear picture of the position of adjoining authorities in relation to affordable housing. To have made a formal request to adjoining authorities for assistance with affordable housing, when the Council knew full well what the answer would be, would not have been effective or productive.
13. In subsequent correspondence the representor also stated that there would be a shortfall in market housing, and that the DtC would additionally be triggered in this respect. However, as I conclude (below) that the RLP will meet the full OAN for market housing, this matter does not trigger the DtC.
14. The Council has clearly taken into account the wider strategic context and the interrelationships with neighbouring areas, particularly in terms of housing markets and employment patterns. I am satisfied that the Council has engaged constructively, actively and on an ongoing basis with relevant local authorities and organisations, and I conclude that the DtC has been met.
60. The Claimants submit that where an LPA cannot meet its own FOAN for affordable housing then it must "explore under the ambit of the duty to co-operate whether any unmet needs can be met within adjacent LPAs" (paragraph 68 of skeleton). The proposition is said to be based upon paragraphs 104 and 106 of the judgment of Hickinbottom J in Gallagher . But in fact the Judge did not determine any issue in relation to section 33A nor did he lay down the proposition for which the Claimants contend.
61. It is to be noted that the Claimants' proposition is limited in scope. This is not a case where non-compliance with section 33A is said to have occurred because the Defendant failed to address the inclusion of a policy in its plan for meeting needs arising outside its area. The Claimants simply argue that TVBC should have "explored" with other LPAs the issue of whether the shortfall in meeting the FOAN for affordable housing in its area could be dealt with in their areas. In essence, this is the same complaint as that raised at the Examination, namely that TVBC failed to put this question to the other authorities.
62. The Claimants were not at all precise as to what the use of the term "explore" should be taken to mean, although it lies at the heart of the ground of complaint. By implication the Claimants recognise that TVBC was not in a position to complete other authorities to provide for TVBC's shortfall and that they might legitimately say that they were unable to assist. Here the word "explore" suggests obtaining sufficient information about affordable housing needs in the areas of other LPAs and their ability to satisfy their own needs and any additional needs from other areas. In the light of that information a plan-making authority could decide, as a matter of judgment, whether it would be worthwhile to pursue negotiations with one or more other authorities to assist with its shortfall.
63. In this case the Claimants made no attempt to show the Court that TVBC either lacked this information or that, in the light of the information it had, TVBC's judgment that there was no point in pursuing negotiations with other authorities on this point was irrational. In his reply, Mr Cahill QC confirmed that the only criticism of the Inspector's report is one of irrationality and is limited to the last sentence of paragraph 12, in which he had said that there had been no need for TVBC to make a " formal request" to adjoining authorities when it knew full well what the answer would be. He also stated that no legal criticism is made of the penultimate sentence of paragraph 12 in which the Inspector said that TVBC's officers had given him a very clear picture of the position of adjoining authorities in relation to affordable housing.
64. In fact, paragraph 12 is a summary of what the Inspector had been told during the Examination. In inquiry document IN009 (dated 19 December 2014) the Inspector explained that the extent of cross-boundary working had been explained by TVBC not only in its "Duty to Co-operate Statement" but also in the Hearing sessions, including one devoted to affordable housing. TVBC had been actively engaged in the production of a number of informal strategies and evidence based studies with other authorities and stakeholders. The extent of the working with other authorities was described by the Inspector as "impressive". It was from this information that he reached the judgment that TVBC's officers were "fully aware that other authorities would not be in a position to assist with any shortfall". Plainly the Inspector relied upon this information when writing paragraph 12 of his Report on the Examination.
65. When paragraph 12 of the Report is read properly in the context of the material which was before the Examination, the Inspector, in his review of TVBC's performance, was entitled to reach the conclusions that (i) they had obtained sufficient information from the cross-boundary work which had in fact taken place on whether adjoining authorities would be able to provide affordable housing to meet any part of needs arising within TVBC's area and that (ii) it would have been pointless to make a "formal request" for assistance in meeting TVBC's shortfall. It is impossible for the Court to treat to Inspector's conclusions as irrational and so ground 2 must be rejected."
Submissions and conclusions