Timothy James House & Anor v Waverley Borough Council & Anor

28 November 2023

[2023] EWHC 3011 (Admin)

High Court

Homeowners challenged a town's new plan that allowed building on land protected by an old agreement. A judge reviewed the process and decided the expert who approved the plan followed the rules, even though the homeowners disagreed. The judge supported the plan, saying only obviously wrong decisions can be overturned.

Key Facts

•Claimants sought statutory review of Waverley Borough Council's decision to adopt Local Plan Part 2 (LPP2).
•Claimants' property is subject to a restrictive covenant affecting a 27-acre site (Golf Course Site) allocated for 190 dwellings in LPP2.
•The restrictive covenant limits development to one house per acre.
•LPP2 was a 'daughter document' to LPP1, a previously adopted strategic plan.
•Grounds of challenge included the Inspector's failure to consider LPP2's scope, misinterpretation of LPP1, and irrational conclusion on the restrictive covenant's variation/discharge.
•The Inspector found LPP2 sound, subject to modifications, and concluded there was a reasonable prospect of varying/discharging the restrictive covenant.

Legal Principles

Statutory review under section 113 PCPA 2004 is limited to public law grounds, not a merits review.

Solihull MBC v Gallagher Homes Ltd [2014] EWCA Civ 1610

Policies in local plans must be consistent with the adopted development plan unless expressly superseded.

Regulation 8 of the 2012 Regulations

Upper Tribunal can discharge or modify restrictive covenants impeding reasonable land use contrary to public interest.

Section 84 Law of Property Act 1925; Millgate Developments Ltd v Alexander Devine Children’s Cancer Trust [2020] UKSC 45

A plan is 'sound' if positively prepared, justified, effective, and consistent with national policy.

Paragraph 35 of the National Planning Policy Framework (Framework)

Soundness is a planning judgment; court review is limited to irrationality.

Barratt Development Limited v City of Wakefield M.D.C. [2010] EWCA Civ 897; Grand Union Investments Limited v Dacorum B.C. [2014] EWHC 1894 (Admin)

Inspectors' decisions are to be construed flexibly; reasons must be intelligible and adequate.

St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643; South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953

Courts should respect planning inspectors' expertise and presume correct policy understanding.

Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865

A subordinate local plan need not address issues already established in a strategic plan.

Oxted Residential Ltd v Tandridge District Council [2016] EWCA Civ 414; Gladman Developments Ltd. v Wokingham Borough Council [2014] EWHC 2320 (Admin)

Outcomes

Claim dismissed.

The Inspector adequately addressed the claimants' concerns regarding LPP2's scope and relationship to housing supply matters in the IR. The Inspector's conclusions were exercises of planning judgment and did not meet the high threshold for irrationality. The Inspector's conclusion regarding the developability of the Golf Course Site, considering the uncertainty of the covenant discharge, was also deemed a reasonable exercise of planning judgment.

Timothy James House & Anor v Waverley Borough Council & Anor

Key Facts

Legal Principles

Outcomes

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