Timothy James House v Waverley Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 28 November 2023 |
| Neutral Citation | [2023] EWHC 3011 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1578/2023 |
[2023] EWHC 3011 (Admin)
Mrs Justice Lang DBE
Case No: CO/1578/2023
AC-2023-LON-001347
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Banner KC and Matthew Henderson (instructed by Penningtons Manches Cooper LLP) for the Claimants
Wayne Beglan and Jack Barber (instructed by Legal Services) for the First Defendant
Jack Smyth (instructed by the Government Legal Department) for the Second Defendant
Hearing dates: 7 & 8 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Claimants seek a statutory review, pursuant to section 113 of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”), of the decision by the First Defendant (“the Council”) to adopt the Waverley Borough Local Plan Part 2: Site Allocations and Development Management Policies (“LPP2”), on 21 March 2023.
The Claimants own and occupy a dwelling house with land at Upper Sattenham, Station Lane, Milford, Godalming (“the Property”). The Property has the benefit of a restrictive covenant which includes within its scope a site now proposed by the Council for development, comprising 27 acres of open land, to the north of the Property, which was formerly part of Milford Golf Course (“the Golf Course Site”). The effect of the restrictive covenant is to restrict the development of the Golf Course Site to one detached house (plus ancillary accommodation) per acre.
The Council is the local planning authority for the Borough of Waverley. It has allocated the Golf Course Site for residential development, and it has granted planning permission for the construction of 190 dwellings.
The Second Defendant (“the Secretary of State”) appointed an inspector to examine LPP2, pursuant to section 20 PCPA 2004. Following the Inspector's Report (“IR”), the Council decided to adopt LPP2 as modified.
The Claimants' grounds of challenge may be summarised as follows:
i) Ground 1: The Inspector unlawfully failed to consider whether it was sound to restrict the scope of LPP2 to be a “daughter document” to the Waverley Borough Local Plan Part 1: Strategy Policies and Sites (“LPP1”). The Inspector was required to consider the scope of LPP2 by the statutory framework and/or because it was so obviously material to the Inspector's statutory task.
ii) Ground 2: Even if the Inspector was not required to consider the scope of LPP2, nevertheless his approach to the examination of LPP2 was unlawful because he misinterpreted LPP1, and failed to take into account material considerations which were required to be taken into account by the statutory framework and/or because they were so obviously material to the soundness of LPP2.
iii) Ground 3: The Inspector's conclusion that there was a reasonable prospect of varying or discharging the restrictive covenant over the Golf Course Site was irrational.
On 5 July 2023, I granted the Claimants permission to proceed with the claim for statutory review.
Planning history
The Claimants' house was constructed in 1929, on agricultural land which was transferred from the vendor to the purchaser by a conveyance dated 17 October 1929. The conveyance contained a restrictive covenant which benefitted the Property, and burdened the open land identified on the title plan, namely, adjacent land to the north of the Property, and land immediately opposite the Property. The terms of the restrictive covenant were as follows:
“Not to erect on the said land more than one detached dwellinghouse to the acre with usual domestic offices at an aggregate prime cost of not less than £1750 in labour materials and construction Provided always that on any plot forming part of the said land and being not less than One acre in area on which such detached dwellinghouse as aforesaid (and no more) is erected, there may also be erected one lodge and one cottage suitable and intended for occupation by a gardener chauffeur or other employee of the occupier of the said dwellinghouse but the costs of any such lodge and one cottage shall not be included in arriving at the said prime cost of the said dwellinghouse and its domestic offices.”
The Claimants purchased the Property in 1998 and continue to live there. The restrictive covenant is shown on the official Charges Register for the Property.
On 25 February 1992, the Council granted planning permission for a golf course on part of the open land burdened by the restrictive covenant, and Milford Golf Course was developed. The owners of Milford Golf Course (Crown Golf) subsequently sold a portion of their land (the Golf Course Site) to Stretton Milford Limited for development by Cala Homes.
LPP1
On 1 February 2018, Mr Bore, a Planning Inspector appointed by the Secretary of State, issued a report on the examination of LPP1. On 20 February 2018, the Council adopted LPP1. It set out the strategic policies relating to the development and use of land for the period up to 2032.
In his report, Mr Bore summarised the housing strategies as follows:
“47. The plan is strategic and does not itself aim to allocate a full range of sites to meet the housing requirement. Having regard to the estimated contributions from all sources, sites for some 1,525 dwellings need to be allocated in Local Plan Part 2 “Site Allocations and Development Management Policies”, and in neighbourhood plans. The Council intends to bring forward Local Plan Part 2 quickly; Annex 1 of the Council's LDS indicates that it is due to be published in June 2018 with adoption in April 2019. Its early adoption in accordance with this timetable, and a positive approach to site identification, are critical to meeting the housing requirement. There is every indication that the Council will adhere to the projected timetable.
……
49. There are enough indications to be confident that the housing requirement will be delivered over the plan period, with the assistance of Part 2 and neighbourhood plans. A large number of possible housing sites have been submitted for the Council's consideration. With the provisions of the submitted plan, as modified, and with the realistic prospect of adequate allocations in Part 2 of the Plan, the housing requirement of a minimum of 590 dpa set out in MM3 is capable of being delivered over the plan period.
50. The trajectory also indicates that there is a sufficient supply of specific deliverable sites to provide 5 years' supply of housing against the housing requirement….”
LPP1 allocated a number of strategic development sites, the largest of which was Dunsfold Aerodrome. Despite opposition from the Claimants, who relied upon the restrictive covenant, the Golf Course Site was allocated for 180 dwellings under Policy SS6, to be delivered over the course of the plan period. The Golf Course Site was also removed from the Green Belt.
The Claimants applied for a statutory planning review of the adoption of LPP1, but permission was refused by John Howell QC, sitting as a Deputy High Court Judge, on 19 June 2018.
Planning permission for the Golf Course Site
On 28 February 2019, the Council granted outline planning permission on the Golf Course Site for 190 dwellings (including 57 affordable dwellings), despite opposition from the Claimants. It also entered into an agreement pursuant to section 106 Town and Country Planning Act 1990 (“TCPA 1990”).
On 19 November 2021, the Council approved reserved matters of appearance, landscaping, layout and scale under the outline permission.
LPP2
Although the Council began preparation of LPP2 in 2017, progress has been slower than anticipated. There was a consultation on Issues and Options between June and July 2017, and a statutory consultation on the Preferred Options draft plan was undertaken between May to July 2018. The Pre-Submission draft plan was prepared between July 2018 and August 2020, and a statutory consultation took place between November 2020 and January 2021. The Council submitted the draft plan to the Secretary of State on 22 December 2021.
The Secretary of State appointed Mr Fort, a Planning Inspector, to undertake an independent examination of the plan, which commenced in January 2022. Examination hearings took place between July and September 2022. A schedule of proposed Main Modifications to the plan was undertaken between December 2022 and January 2023.
The Inspector issued the IR on 13 March 2023. The Inspector found the plan to be legally compliant and sound, subject to the Main Modifications which were identified in the examination process. The Inspector did not accept the representations made by the Claimants that the Golf Course Site should no longer be allocated because there was no reasonable prospect that it would become available.
The Council adopted the LPP2, as modified, on 21 March 2023.
Legal framework
Statutory scheme
The statutory scheme for the preparation, examination and adoption of development plans is set out in the PCPA 2004 and the Town and Country Planning (Local Planning) (England) Regulations 2012 (“the 2012 Regulations”).
Section 17(3) and Section 17(6) PCPA 2004 provide as follows:
“(3) The local planning authority's local development documents must (taken as a whole) set out the authority's policies (however expressed) relating to the development and use of land in their area.
….
(6) 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.”
The preparation of local development...
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