CPRE Surrey v Waverley Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Sir Ernest Ryder,Lord Justice Patten |
| Judgment Date | 31 October 2019 |
| Neutral Citation | [2019] EWCA Civ 1826 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C1/2018/2826 and C1/2018/2827 |
| Date | 31 October 2019 |
[2019] EWCA Civ 1826
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MS NATHALIE LIEVEN Q.C. (sitting as a deputy judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Sir Ernest Ryder, Senior President of Tribunals
and
Lord Justice Lindblom
Case Nos: C1/2018/2826 and C1/2018/2827
and
and
Mr Ned Westaway (instructed by Richard Buxton Solicitors) for the Appellant
Mr Wayne Beglan and Mr Asitha Ranatunga (instructed by Waverley Borough Council) for the Respondent
The Interested Parties did not appear and were not represented.
Mr Paul Stinchcombe Q.C. and Mr Richard Wald (instructed by Richard Buxton Solicitors) for the Appellant
Mr Wayne Beglan and Mr Asitha Ranatunga (instructed by Waverley Borough Council) for the First Respondent
The Second Respondent and the Interested Party did not appear and were not represented.
Hearing date: 24 June 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
Introduction
The main question in these two appeals is whether a local planning authority, when preparing its local plan, made any legal error in its consideration of unmet housing need in a neighbouring authority's area. There is no new issue of law.
Both appellants – CPRE Surrey and POW Campaign Ltd. (“POW”) – appeal against the order dated 20 November 2018 of Ms Nathalie Lieven Q.C., as she then was, sitting as a deputy judge of the High Court, by which she dismissed their applications under section 113 of the Planning and Compulsory Purchase Act 2004, challenging the adoption by the first respondent in both appeals, Waverley Borough Council, of the Waverley Borough Local Plan Part 1: Strategic Policies and Sites (“the Local Plan Part 1”) on 20 February 2018. These proceedings concern several policies of the Local Plan Part 1 – including Policy ALH1, which provides for a minimum of 11,210 additional dwellings in the plan period from 2013 to 2032. The judge also dismissed an application under section 288 of the Town and Country Planning Act 1990, by which POW challenged the decision of the second respondent in the second appeal, the Secretary of State for Housing, Communities and Local Government, in a decision letter dated 29 March 2018, to grant an application for planning permission by the third respondent in that appeal, Dunsfold Airport Ltd., for the development of a new settlement at Dunsfold Aerodrome. There is no appeal against that part of the judge's order. Permission to appeal was granted by Singh L.J. on 19 February 2019.
In the challenges under section 113 of the 2004 Act both CPRE Surrey and POW contend that the council erred in law in adopting the Local Plan Part 1 because the inspector who carried out the examination of it under section 20, when identifying the objectively assessed need (“OAN”) for housing in the borough of Waverley, took an unlawful approach to the treatment of the unmet housing need in the neighbouring borough of Woking. CPRE Surrey also complain that the relevant reasons in the inspector's report were inadequate. The crucial point, common to both appeals, concerns the inspector's recommended Main Modification 3, which the council accepted, whose effect was to increase the annual housing requirement figure in Waverley by 83 dwellings per annum – 1,575 dwellings over the whole plan period – to address unmet housing need in Woking.
The issues in the appeals
The grounds of appeal in the two appellant's notices raise four issues: first, whether the inspector's approach to the assessment of unmet housing need in Woking was unlawful and his conclusion unreasonable; second, whether his assessment was vitiated by a failure to seek further information; third, whether he was obliged to recommend a review of the Local Plan Part 1; and fourth, whether his reasons were inadequate.
The statutory scheme for the preparation of development plan documents
The statutory provisions for the preparation of local development documents are in Part 2 of the 2004 Act. Section 17(3) provides that the “local planning authority's local development documents must (taken as a whole) set out the authority's policies … relating to the development and use of land in their area”. Section 17(6) states that “[the] authority must keep under review their local development documents having regard to the results of any review carried out under section 13 or 14”. Section 17(6A) empowers the Secretary of State, by regulations, to “make provision requiring a local planning authority to review a local development document at such times as may be prescribed”.
Section 20 provides for the submission of development plan documents to the Secretary of State for independent examination. The purpose of an independent examination is to determine, among other things, whether the development plan document is “sound”, and whether the local planning authority has complied with any duty imposed on by section 33A (section 20(5)). Where the person appointed to carry out the examination does not consider it would be reasonable to conclude that the document satisfies the requirements mentioned in sub-section (5)(a) and is “sound”, but does consider it would be reasonable to conclude that the authority has complied with any duty under section 33A (section 20(7B)), if he is asked to do so by the authority, he “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” (section 20(7C)). The authority “must publish the recommendations and the reasons” (sub-section (8)).
Section 27 gives the Secretary of State a default power to intervene if he “thinks that a local planning authority are failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document”. Section 28(1) provides that two or more authorities “may agree to prepare one or more joint local development documents”. Section 28A gives the Secretary of State power to direct the preparation by two or more authorities of a “joint development plan document” if he “considers that to do so will facilitate the more effective planning of the development … of land in the area of one or more of the … authorities in question”. Section 33A requires authorities to “co-operate … in maximising the effectiveness” with which certain “activities” are undertaken (sub-section (1)), by engaging “constructively, actively and on an ongoing basis in any process …” (sub-section (2)). The “activities” include “the preparation of development plan documents” and “other local development documents” (sub-section (3)). The requisite engagement includes considering whether “to … enter into … agreements on joint approaches …” and whether “to agree under section 28 to prepare joint local development documents” (sub-section (6)).
Section 113(3) provides for a “relevant document” to be challenged on the ground that it is “not within the appropriate power” (see my judgment in Woodfield v J.J. Gallagher Ltd. [2016] 1 W.L.R. 5126, at paragraphs 29 to 39).
Government policy and guidance
At the relevant time, the Government's planning policy for England was in the National Planning Policy Framework (“NPPF”) published in March 2012, which was amplified by the Planning Practice Guidance (“PPG”).
In the section of the NPPF headed “Delivering a wide choice of high quality homes”, paragraph 47 said that “[to] boost significantly the supply of housing, local planning authorities should … use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period …”.
In the part of the NPPF that dealt with “Plan-making”, paragraph 153, under the heading “Local Plans”, said that “[each] local planning authority should produce a Local Plan for its area”, and that “[this] can be reviewed in whole or in part to respond flexibly to changing circumstances”. Paragraph 158, under the heading “Using a proportionate evidence base”, said that “[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”, and that “… 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”. Under the heading “Housing”, paragraph 159 stated:
“159. 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. …
… .”
Policy on the examination of local plans was set out in paragraph 182, under the heading “Examining Local Plans”:
“182. 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...
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