Court of Appeal dismisses Waverley Local Plan challenges

01 Nov 2019

Planning and Environment, Public Law and Judicial Review

In a judgment handed down on 31 October 2019, the Court of Appeal dismissed conjoined Local Plan challenges brought by POW Campaign Limited and CPRE Surrey to the adoption of Waverley Borough Council’s Local Plan.

The decision will be of interest to those involved in the assessment of Objectively Assessed Need within the Local Plan process, and more widely to those considering the standard of reasons required in such decisions.

The principal challenge

The Local Plan challenges focussed on the Local Plan Inspector’s approach to unmet housing need within the Housing Market Area when assessing Waverley’s OAN. The Examining Inspector had assessed that Waverley’s OAN should include 50% of Woking’s unmet need (83dpa), calculating that level of need from Woking’s Core Strategy 2012 and the need assessed in the SHMA 2015.

POW and CPRE had argued that this approach was legally flawed given (inter alia) that the Inspector had accepted that the starting point for assessing Waverley’s OAN should be lower based on the 2014 household projections, whereas the SHMA 2015 was based on the 2012 projections, and that no similar adjustment had been made when calculating Woking’s unmet need. It was also argued that the allocation of 50% of Woking’s unmet need to Waverley was arbitrary and inadequately reasoned.

Key principles

Lindblom LJ (with whom the other members of the court agreed) dismissed the challenges. At [35] the court set out 5 key principles emerging from the caselaw which were to be applied in the local plan context:

(1) The court will not revisit the merits of the process, the s.78 cases are equally applicable to the local plan context in that regard

(2)&(3) whilst the correct construction of policy is for the court, those policy statements are not equivalent to statements of legal principle. The relevant policy was not framed in mandatory or inflexible style, and no single methodology or level of precision to the calculation of housing numbers is prescribed. There may be no single “right answer”

(4) The exercise was one of evaluation, with a broad scope for reasonable planning judgment. The degree of accuracy required was itself a matter of judgment. The court would not be tempted into an assessment of the evidence; which involves a series of planning judgments

(5) Perhaps most importantly, arguments contending what a decision-maker “should”, “could” or “might” have done in assessing housing need are unlikely to prevail.

The court applied those principles, noting the following key features. The Inspector was not carrying out the Woking Local Plan examination. The choice of relevant data and projections, and their use, were matters of planning judgment. It was outside the Inspector’s remit for him to recalculate Woking’s OAN [59].

The Inspector was seeking to establish the OAN for Waverley for its Local Plan to be sound, which was a significantly different exercise. Updating Woking’s OAN was not a simple exercise of recalculation in line with the 2014 projections and would have had to have regard to the employment growth analysis on which it was partly based. The Inspector’s assessment fell comfortably within the scope of a reasonable planning judgement, given (inter alia) that Waverley is undoubtedly less constrained than both Woking and Guildford in terms of its Green Belt.

Secondary grounds

On the secondary points of appeal, the court made further findings of general interest. The Inspector was not required to call for more information to resolve the housing issue. The Inspector was entitled to deal with the uncertainties in the evidence base as he had. There was no obligation on the Inspector to recommend an early review of the plan. As for the reasons challenge and the standard of reasoning required, the court confirmed that the Porter approach applies [71]. Generally speaking, the reasons in an examination report may be more succinct that those given in a s.78 appeal [74]. On the crucial point, the Inspector’s reasons were clear, adequate and intelligible. He was only required to set out the main parts of his assessment and the essential planning judgments in it [75].

Wayne Beglan and Asitha Ranatunga appeared for Waverley Borough Council in the Court of Appeal and the High Court.

Clare Parry appeared for the Secretary of State in the High Court.

Wayne and Robert Williams appeared for Waverley Borough Council at the Local Plan examination.