Housing Development Decisions Upheld in Landmark Planning Law Case

Citation: [2023] EWHC 3011 (Admin)
Judgment on

Introduction

In the recent judgment of Timothy James House & Anor v Waverley Borough Council & Anor, the High Court of Justice’s Planning Court addressed critical questions regarding the role and scope of Local Plan Part 2 (LPP2) in relation to its predecessor LPP1, the assessment of “developable” sites, and the implications of restrictive covenants on planning decisions. Mrs Justice Lang’s decision illuminates the strictures of judicial review in planning law matters, examining the soundness of a local plan under a statutory scheme, and the discretion afforded to planning inspectors.

Key Facts

The claimants, owners of property affected by a restrictive covenant, sought to review the decision to adopt LPP2, citing concerns about its scope and whether it guaranteed the delivery of the established housing requirement and a five-year housing land supply. Central to the dispute was the allocation of the Golf Course Site for residential development, which was restricted by a covenant limiting its development. The claimants contended that the inspector’s conclusion that there was a reasonable prospect of varying or discharging the restrictive covenant was irrational.

The judgment revisited several key legal principles:

  1. Statutory Scheme Compliance: Under sections 19 and 20 of the Planning and Compulsory Purchase Act 2004 (PCPA 2004), the court highlighted the inspector’s duty to ensure that a local plan is prepared correctly per regulations and is sound.

  2. Soundness of a Local Plan: Soundness is determined based on the National Planning Policy Framework (NPPF), which sets out that a plan must be positively prepared, justified, effective, and consistent with national policy. This aligns with established case law that soundness judgments sit within the realm of planning judgment.

  3. Strategic vs. Non-Strategic Policies: The court dissected the distinction between strategic policies contained in LPP1 and the more detailed policies in LPP2, underscoring that non-strategic policies should also be informed by strategic priorities.

  4. Restrictive Covenants in Planning: The case revisited the application of section 84 of the Law of Property Act 1925 concerning the discharge or modification of restrictive covenants and how this impacts the delivery of housing.

  5. Irrationality: For a decision to be considered irrational, it must fall outside the range of responses that a reasonable decision-maker could reach. This high threshold resonates with established standards for overturning an inspector’s decision on judicial review.

  6. Modular Approach to Development Plans: Oxted Residential Ltd v Tandridge District Council was cited, emphasizing that it is not obligatory for each DPD within a modular structure to fulfil the entirety of the housing need established in a core strategy.

Outcomes

Mrs Justice Lang dismissed the claim for judicial review on all grounds, affirming:

  • The inspector’s decision-making on the housing allocation in LPP2 was within the ambit of reasonable planning judgment, consonant with the statutory scheme, and rational in its approach.
  • The inspector had sufficient grounds to conclude that there was a reasonable prospect of successfully discharging the restrictive covenant affecting the Golf Course Site.
  • The approach to plan-making was sound, and based on proportionate evidence, consistent with Gladman and Oxted jurisprudence.
  • The inspector adequately addressed substantive concerns about the scope of LPP2, the delivery of the housing requirement, and the five-year housing land.

Conclusion

The judgment of Timothy James House & Anor v Waverley Borough Council & Anor serves as a keystone for understanding the limits of challenging planning decisions via judicial review. It reaffirms the discretionary remit of inspectors in evaluating the soundness of a local plan within statutory and policy frameworks. Furthermore, it underscores the critical distinction between planning judgments and legal errors, asserting that challenges to an inspector’s scope evaluation will likely flounder unless egregious miscalculations of law are demonstrated. The high bar set for rationality challenges predicates that even where the outcome of a relevant process, like a discharge application, is uncertain, as long as the inspector’s conclusion is underpinned by a reasoned judgment based on evidence, it will stand firm in the face of judicial scrutiny.