Timothy James House & Anor v Waverley Borough Council & Anor

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.

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.

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.

“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.”

LPP1

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.

……

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.

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….”

Planning permission for the Golf Course Site

LPP2

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.

….

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.”

Development plan documents must be prepared in accordance with the Local Development Scheme.

…..

(1B) Each local planning authority must identify the strategic priorities for the development and use of land in the authority’s area.

(1C) Policies to address those priorities must be set out in the local planning authority’s development plan documents (taken as a whole).

…..

In preparing a development plan document or any other local development document, the local planning authority must have regard to –

national policies and advice contained in guidance issued by the Secretary of State;

….

any other local development document which has been adopted by the authority;

such other matters as the Secretary of State prescribes.”

The local planning authority must submit every development plan document to the Secretary of State for independent Examination by an Inspector.

But the authority must not submit such a document unless –

they have complied with any relevant requirements contained in regulations under this Part, and

they think the document is ready for independent Examination.

….

The Examination must be carried out by a person appointed by the Secretary of State.

The purpose of an independent Examination is to determine in respect of the development plan document –

whether it satisfies the requirements of sections 19 and 24 (1), regulations under section 17 (7) and any regulations under section 36 relating to the preparation of development plan documents;

whether it is sound; and

whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation.

Any person who makes representations seeking to change a development plan document must (if he so requests) be given the opportunity to appear before and be heard by the person carrying out the Examination.

Where the person appointed to carry out the Examination –

has carried it out, and

considers that, in all the circumstances, it would be reasonable to conclude –

that the document satisfies the requirements mentioned in sub-section (5)(a) and is sound; and

that the local planning authority have complied with any duty imposed on the authority by section 33A in relation to the document's preparation, the person must recommend that the document is adopted and give reasons for the recommendation.

(7A) Where the person appointed to carry out the Examination—

has carried it out, and

is not required by sub-section (7) to recommend that the document is adopted, the person must recommend non-adoption of the document and give reasons for the recommendation.

(7B) Sub-section (7C) applies where the person appointed to carry out the Examination—

does not consider that, in all the circumstances, it would be reasonable to conclude that the document satisfies the requirements mentioned in sub-section (5) (a) and is sound, but (b) does consider that, in all the circumstances, it would be reasonable to conclude that the local planning authority complied with any duty imposed on the authority by section 33A in relation to the document's preparation.

(7C) If asked to do so by the local planning authority, the person appointed to carry out the Examination must recommend modifications of the document that would make it one that—

satisfies the requirements mentioned in sub-section (5) (a), and

is sound.

……”

If the person appointed to carry out the independent Examination of a development plan document recommends that it is adopted, the authority may adopt the document –

as it is, or

with modifications that (taken together) do not materially affect the policies set out in it.

(2A) Sub-section (3) applies if the person appointed to carry out the independent Examination of a development plan document—

recommends non-adoption, and

under section 20 (7C) recommends modifications (‘the main

modifications’).

The authority may adopt the document –

with the main modifications, or

with the main modifications and additional modifications if the additional modifications (taken together) do not materially affect the policies that would be set out in the document if it was adopted with the main modifications but no other modifications.

The authority must not adopt a development plan document unless they do in accordance with subsection (2) or (3).

A document is adopted for the purposes of this section if it is adopted by resolution of the authority.”

“…..

Subject to paragraph (5), the policies contained in a local plan must be consistent with the adopted development plan.

Where a local plan contains a policy that is intended to supersede another policy in the adopted development plan, it must state that fact and identify the superseded policy.”

Section 84 Law of Property Act 1925

National Planning Policy Framework

Local plans and spatial development strategies are examined to assess whether they have been prepared in accordance with legal and procedural requirements, and whether they are sound. Plans are ‘sound’ if they are:

These tests of soundness will be applied to non-strategic policies in a proportionate way, taking into account the extent to which they are consistent with relevant strategic policies for the area.”

“56.  Testing the soundness of a plan is not a task for the court. It is a task that lies within the realm of planning judgment exercised under the relevant statutory scheme in the light of relevant policy and guidance. The court's jurisdiction under section 113 of the 2004 Act is limited to review on traditional public law grounds (see the judgment of Keene L.J. in Blyth Valley Borough Council v Persimmon Homes (North East) Limited [2008] EWCA Civ 861, at paragraph 8). The question in this case, as the parties agree, is whether the Council's adoption of the plan on the inspector's recommendation was irrational. As has been said many times, a claimant who seeks to persuade the court that a planning decision-maker has lapsed into irrationality will have to demonstrate an unusually bad error of judgment. He must show that the decision falls outside the range of judgment open to a reasonable decision-maker (see, for example, the judgment of Lord Bingham C.J., as he then was, in R. v Secretary of State for the Home Department, ex parte Hindley [1998] QB 751, at p. 777A).

…

59.  But the guidance as to “soundness” in the NPPF is policy, not law, and it should not be treated as law. As Carnwath L.J., as he then was, said in Barratt Developments Plc v The City of Wakefield Metropolitan District Council [2010] EWCA Civ 897 (in paragraph 11 of his judgment), so long as the inspector and the local planning authority reach a conclusion on soundness which is not “irrational (meaning perverse)”, their decision cannot be questioned in the courts, and the mere fact that they have not followed relevant guidance in national policy in every respect does not make their conclusion unlawful. Soundness, he said (at paragraph 33) was “a matter to be judged by the inspector and the local planning authority, and raises no issue of law, unless their decision is shown to have been “irrational”, or they are shown to have ignored the relevant guidance or other considerations which were necessarily material in law”.

…

67.  The assessment of soundness was not an abstract exercise. It was essentially a practical one. If the core strategy as submitted was unsound, the inspector had to consider why and to what extent it was unsound, what the consequences of its unsoundness might be, and, in the light of that, whether its unsoundness could be satisfactorily remedied without the whole process having to be aborted and begun again, or at least suspended until further work had been done.”

Strategic policy-making authorities should have a clear understanding of the land available in their area through the preparation of a strategic housing land availability assessment. From this, planning policies should identify a sufficient supply and mix of sites, taking into account their availability, suitability and likely economic viability. Planning policies should identify a supply of:

a) specific, deliverable sites for years one to five of the plan period [FN34 With an appropriate buffer, as set out in paragraph 74. See Glossary for definitions of deliverable and developable.]; and

b) specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15 of the plan.”

Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies [FN38 For the avoidance of doubt, a five year supply of deliverable sites for travellers - as defined in Annex 1 to Planning Policy for Traveller Sites - should be assessed separately, in line with the policy in that document.], or against their local housing need where the strategic policies are more than five years old [FN39 Unless these strategic policies have been reviewed and found not to require updating. Where local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance.].

The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:

a) 5% to ensure choice and competition in the market for land; or

b) 10% where the local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan [FN40 For the purposes of paragraphs 74b and 75 a plan adopted between 1 May and 31 October will be considered ‘recently adopted’ until 31 October of the following year; and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October in the same year.], to account for any fluctuations in the market during that year; or

c) 20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply [FN41 This will be measured against the Housing Delivery Test, where this indicates that delivery was below 85% of the housing requirement.].”

“Deliverable: To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. In particular: a) sites which do not involve major development and have planning permission, and all sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans). b) where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.

…

Developable: To be considered developable, sites should be in a suitable location for housing development with a reasonable prospect that they will be available and could be viably developed at the point envisaged.”

Challenges to Inspectors’ decisions

“6.  In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the “seven familiar principles” that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are:

7.  Both the Supreme Court and the Court of Appeal have, in recent cases, emphasized the limits to the court's role in construing planning policy (see the judgment of Lord Carnwath in Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] UKSC 37, at paragraphs 22 to 26, and my judgment in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, at paragraph 41). More broadly, though in the same vein, this court has cautioned against the dangers of excessive legalism infecting the planning system – a warning I think we must now repeat in this appeal (see my judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, at paragraph 50). There is no place in challenges to planning decisions for the kind of hypercritical scrutiny that this court has always rejected – whether of decision letters of the Secretary of State and his inspectors or of planning officers' reports to committee. The conclusions in an inspector's report or decision letter, or in an officer’s report, should not be laboriously dissected in an effort to find fault (see my judgment in Mansell, at paragraphs 41 and 42, and the judgment of the Chancellor of the High Court, at paragraph 63).”

“… the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly.”

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

“Generally at least, the reasons provided in an inspector’s report on the examination of a local plan may well satisfy the required standard if they are more succinctly expressed that the reasons in the report or decision letter of an inspector in a s.78 appeal against the refusal of planning permission. As Mr Beglan submitted, it is not likely that an inspector conducting a local plan examination will have to set out the evidence given by every participant if he is to convey to the “knowledgeable audience” for his report a clear enough understanding of how he has decided the main issues before him.”

Case law

“27.  Challenges such as this to the adoption of a development plan document by a local planning authority will seldom succeed. That is largely because the task of testing the soundness of a development plan document is not a task for the court. It lies squarely within the realm of planning judgment, exercised within the relevant statutory scheme and in the light of relevant policy and guidance. Under section 113 of the 2004 Act the court’s role is to review that exercise of judgment, on traditional public law grounds. The question here – as it was, for example, in Grand Union Investments – is whether the local planning authority’s adoption of the plan under challenge, following the recommendation of the inspector who conducted the Examination, was perverse – that is to say that the adoption of the plan was beyond the range of reasonable judgment. As Carnwath L.J., as he then was, said in Barratt Developments Plc v City of Wakefield Council [2010] EWCA Civ 897 (in paragraph 11 of his judgment), provided the inspector and the local planning authority reach a conclusion on soundness that is not “irrational” (meaning “perverse”), their decision cannot be questioned in the courts. Soundness, said Carnwath L.J. (at paragraph 33), was a “matter to be judged by the inspector and the Council, and raises no issue of law, unless their decision is shown to have been “irrational”, or they are shown to have ignored the relevant guidance or other considerations, which were necessarily material in law”.

28.  As Mr Rhodri Price Lewis Q.C., for the council, submitted, the fatal misconception in Mr Clay’s argument is the idea that the local plan part 2 was a development plan document in which the council was obliged by statute, or at least in the light of government policy in the NPPF, to rectify any shortcomings in the core strategy’s approach to housing land supply, and, in particular, to undertake an assessment of the “objectively assessed needs” for housing. That was not so.

29.  An issue similar to this arose in Gladman Developments Ltd. v Wokingham Borough Council [2014] EWHC 2320 (Admin). In that case the claimant challenged a development plan document in which the local planning authority had made allocations to address a housing requirement derived from the South East Plan, in a core strategy prepared under the policies in PPS3. It was argued that the inspector who conducted the Examination could not find the plan sound because it was not based on a requirement derived from “objectively assessed needs” for the authority’s area, as paragraph 47 of the NPPF now requires. That argument was rejected by Lewis J. in a comprehensive and, in my view, compelling analysis. Lewis J. was satisfied that the inspector did not have to determine whether the housing requirement in the core strategy represented the “objectively assessed needs”, or to endorse the requirement itself. He gave five reasons for this conclusion in a passage of his judgment (paragraphs 60 to 69) quoted in full by Dove J. in his (in paragraph 38). He later adopted essentially the same approach in R. (on the application of Gladman Developments Ltd.) v Aylesbury Vale District Council [2014] EWHC 4323 (Admin) (at paragraphs 67 to 69).

30.  The five reasons given by Lewis J., paraphrased and in summary, were these.

31.  First, the statutory scheme does not require the approach contended for. A development plan may comprise several development plan documents. In preparing a development plan document the local planning authority must have regard to any other development plan document already adopted, such as a core strategy (section 19(2)(h) of the 2004 Act), and the inspector conducting the Examination must ensure that this has been done (section 20(5)(a)). There is nothing in the statutory scheme to prevent the adoption, for example, of a development plan document that is making allocations consistent with an adopted core strategy, simply because the core strategy may require revision or amendment to bring it into line with national policy (paragraphs 61 and 62 of the judgment).

32.  Secondly, the relevant policies in the NPPF, properly understood, do not require every development plan document within its broad definition of a “Local Plan” to fulfil all the requirements described in paragraph 47. Where one of the necessary purposes of a particular development plan document is to identify the level of housing need that requires to be met in the relevant area, “as far as is consistent with the policies set out in [the NPPF]”, the provisions of the NPPF bearing on that purpose, including paragraphs 158 and 159 as well as paragraph 47, will be engaged. However, as Lewis J. aptly put it, “[properly] read, … [the NPPF] does not require a development plan document which is dealing with the allocation of sites for an amount of housing provision agreed to be necessary to address, also, the question of whether further housing provision will need to be made” (paragraphs 63 to 65).

33.  Thirdly, it is difficult to reconcile with the NPPF’s encouragement for the timely preparation and adoption of local plans the proposition that a local planning authority cannot prepare, and an inspector cannot consider the soundness of, “a development plan document dealing with the allocation of necessary housing until further steps are taken to identify whether additional housing is required” (paragraph 66).

34.  Fourthly, the notion that the policy in paragraph 47 of the NPPF can be used as a means of compelling a full, objective assessment of housing need before a development plan document making allocations for “housing need already established” can be adopted is also unnecessary. An authority is under a statutory requirement, in section 17(6) of the 2004 Act, to keep its local development documents under review (paragraph 67).

35.  And fifthly, this analysis was consistent with the first instance decision in Solihull Metropolitan Council v Gallagher Estates – later upheld on appeal – though here the circumstances were different. Here the inspector was “examining a plan which proposed site allocations for housing which, as a minimum, would contribute towards the agreed housing need of the area” (paragraph 68).

36.  For those five reasons, Lewis J. concluded, the inspector was “not required by reason of [the NPPF] to consider an objective assessment of housing need in order to assess whether this development plan document was sound” (paragraph 69).

37.  I think that analysis provides no less effective an answer to Mr Clay’s argument in this case than it did to the claimant’s submissions in Gladman Developments v Wokingham Borough Council. Mr Clay said that that case was very different from this, because there the development plan document was making allocations, and was “intrinsically, permissive rather than restrictive”, and therefore consistent with government policy in the NPPF. However, Dove J. was entirely unconvinced that the facts of the two cases could be materially distinguished on that basis (paragraph 56 of his judgment).

38.  I agree with Dove J.. He concentrated, rightly in my view, on the “scope or purpose” of the local plan part 2 (paragraphs 53 to 55 of his judgment). He acknowledged that “the legislation contemplates a modular structure to the Development Plan whereby it can be constructed from a series of individual elements which are to be read together for the purposes of conducting exercises in development control”, and that “[these] individual parts may be developed at different times against the backdrop of different national policies for the purposes of Section 19(2)(a) of the 2004 Act” (paragraph 53). An inspector conducting an Examination must establish the true scope of the development plan document he is dealing with, and what it is setting out to do. Only then will he be able properly to judge “whether or not, within that scope and within what it has set out to do”, it is “sound” (section 20(5)(b)). His assessment will require him to ask himself, among other things, whether the local planning authority has had regard to national policy (section 19(2)(a)) and to “any other local development document which has been adopted by the authority” (section 19(2)(h)). The judge noted that in this case there was no complaint of “inconsistency or potential inconsistency with another local development document” (paragraph 54). He went to say this (in paragraph 55):

39.  As the judge recognized, the scope of the local plan part 2 is plain from the text in its “Introduction”, and from the policies it contains. It “supports” the core strategy. It does not substitute for the policies of the core strategy an amended or new strategy. That is not what it had to do, nor what it could have done. Its explicit purpose is to provide what it describes as “a set of detailed planning policies to be applied locally in the assessment and determination of planning applications over the plan period”, to replace the remaining saved policies of the 2001 local plan (paragraph 1.4), and to provide the “detailed policies” to complement the “strategic policies” in the core strategy (paragraph 1.8). In preparing it, the council was not undertaking the work indicated by paragraphs 47 and 159 of the NPPF. It did not have to carry out an assessment of the housing needs that would have to be met in its area to satisfy the requirements of national policy, as they now are, in paragraph 47 of the NPPF. It was not obliged in this particular plan-making process to “use [its] evidence base to ensure that [its] 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 [the NPPF]”. Equally, the inspector who conducted the Examination was not required to scrutinize the council’s performance in discharging those requirements of national planning policy. The suggestion that such an exercise was called for in this process is misconceived.

40.  In the “Introduction” of his report, in paragraph 1, the inspector reminded himself of the policy for the testing of a plan’s soundness in paragraph 182 of the NPPF. In the section headed “Assessment of Soundness”, dealing with “Issue 1 – The Basis for the Overall Approach of the Plan”, the inspector grappled with the argument that the core strategy was not consistent with NPPF policy, and was therefore out of date. His conclusions were these:

41.  I see no error of law in the approach taken by the inspector there. His conclusions are cogent, his reasoning clear and complete. To hold that his analysis was in any way irrational or perverse would be quite impossible. It is composed of perfectly rational planning judgments. He plainly understood the role of the local plan part 2. He was right to reject the argument made to him that the council could not lawfully, or at least should not, adopt it without first undertaking the exercise prescribed in paragraph 47 of the NPPF. As he acknowledged (in paragraph 11), that was not an exercise necessary in, or appropriate to, this particular plan-making process. Nor was this a process in which allocations of sites for housing were to be made. Nor again was it a process in which the Green Belt boundary ought to have been reviewed. These were matters to be dealt with, in so far as they needed to be, in the review of the core strategy. In the meantime, though the role of the local plan part 2 was a limited one, its policies would still be useful. Dove J.’s conclusions to that effect (in paragraph 58 of his judgment) are, in my view, clearly correct.”

“103.  I reject Mr Lopez’s argument that the job of the SAP was simply to allocate for the figures in the CS, and that the Inspectors therefore did not need to, and indeed should not, have looked at any other figures. The job for the Inspectors in deciding whether there should be GB release was to apply the NPPF, and in particular para 83. They therefore had to determine whether there were exceptional circumstances to justify GB release. If the level of need in the CS was undermined in emerging policy then that was a matter that they had to take into account and give reasons in respect of. The logical outcome of Mr Lopez’s argument would be that any change of circumstance which undermined the CS requirement was irrelevant to the determination of exceptional circumstances in the SAP. In my view that cannot be right. The Inspectors had to take the up to date position in respect of all material considerations and that must include the actual level of housing requirement if the policy had become out of date.”

Claimants’ submissions on Ground 1

Whether LPP2 was positively prepared, providing a strategy which meets the area’s objectively assessed needs;

Whether LPP2 was justified, it was obviously material to consider how far it should contribute to the overarching strategy in LPP1;

Whether LPP2 was consistent with national policy on the delivery of housing.

Claimants’ submissions on Ground 2

Defendants’ submissions on Grounds 1 and 2

Conclusions on Grounds 1 and 2

LPP1

“The Local Plan Part 1 provides the framework for other Local Plan documents which will contain more detailed policies and the identification and allocation of land for non-strategic development to support the overall vision and strategy for the area. Local Plan Part 2, which is to follow, will contain development management policies, site allocations and land designations. The scope of Local Plan Part 2 provides the potential to allocate sites of any size.”

LPP2

“This document will be directly linked to Local Plan Part 1 and its purpose is to provide the more detailed day-to-day planning policies, replacing the retained policies from the 2002 Local Plan. It will also deal with site-specific issues, including identifying the specific sites needed to meet housing or other land use needs.”

“Local Plan Part 2 (LPP2) is the ‘daughter document’ of ‘Local Plan Part 1: Strategic Policies and Sites’ (adopted February 2018)(LPP1). It provides a suite of development management policies and allocates sites for housing and other uses consistent with the strategic approach expressed in LPP1. The Plan sits alongside neighbourhood plans both made and in preparation. LPP2 replaces all the remaining policies contained within the ‘Waveney Borough Local Plan 2002’.”

“The minimum housing target for the parish of Witley (including Milford) is 480, as set in Local Plan Part 1. As of 1st April 2022, there have been 100 completions within Witley parish. There are also 188 outstanding permissions. This totals 288 committed dwellings for Witley, meaning that there is an outstanding requirement to allocate a minimum of 192 dwellings through Local Plan Part 2.”

The examination

Some representors make reference to the delivery of housing on the LPP1’s strategic sites not progressing at a rate previously anticipated, and comments have been made about potential increases to the Borough’s objectively assessed need since the adoption of LPP1. Taking into account the Gladman Development Ltd v Wokingham BC11, and Oxted Residential Ltd v Tandridge DC12 judgements, is it within the scope of the LPP2 to address either of these issues at this time?

The objectively assessed need for housing in Waverley in the development plan period has been established by LPP1. The role of LPP2 is to plan for the allocation of sites as envisaged by the strategic policies set in LPP1. Both the Gladman Development Ltd v Wokingham BC [2014] EWHC 2320 (Admin), and Oxted Residential Ltd v Tandridge DC [2016] EWCA Civ 414 judgements made clear that it is not the function of a subordinate plan (i.e. LPP2) to re-open the Borough’s objectively assessed need established within a strategic plan (i.e. LPP1). Therefore, the Council consider that any change to the objectively assessed need for the Borough would need to be undertaken through a review of LPP1 and is not a matter within the scope of LPP2.

Would the allocation of sites for housing outside of the above-mentioned settlements (i.e. in M6,I(i),Q1) be within the scope of LPP2? Although LPP1 did not specifically identify which settlements would be allocated housing through LPP2, it did make clear that to meet the LPP1 housing requirement additional housing would be allocated through either LPP2 or through the relevant neighbourhood plan. In supporting the aims of the Localism Act and neighbourhood planning, LPP2 only deals with housing allocations in the settlements of Haslemere and Witley (including Milford); as these areas have not met their minimum housing allocation set in LPP1 and are not dealing with housing allocations within their respective neighbourhood plans.

During the preparation of LPP2, the Council engaged with the relevant town and parish councils to understand those that would be allocating housing to meet the identified LPP1 housing requirement through their neighbourhood plans. Neighbourhood plans have been adopted for Bramley, Chiddingfold and Farnham which deal with the housing requirement for these settlements. Neighbourhood plans for Cranleigh, Dunsfold and Elstead are being prepared which will deal with the housing allocations for these settlements. Although it is not indicated to be an issue currently, the Council consider that any delay to the preparation of neighbourhood plans and consequential impact on housing supply and delivery, would be for a review of LPP1 to consider.

The Council consider that although the allocation of housing outside of the settlements of Haslemere and Witley (including Milford) may be strictly lawful, it is not necessary to render the plan sound and it also runs against the strategy set out by LPP1. As a result of these reasons, it is also not presently supported by a sufficient evidence base. As a result of the Council’s decision to only allocate sites in the settlements of Haslemere and Witley (including Milford), the evidence base does not currently provide the basis for the allocation of housing outside the identified settlements. Therefore, it would not be proportionate or, in fact, appropriate for LPP2 to allocate sites for housing outside of the aforementioned settlements.”

The Inspector’s Report

“Context of the Plan

The LPP2 relates to Waverley Borough, a largely rural district with over 90% of its area comprising open countryside, including landscapes within an Area of Outstanding Natural Beauty (AONB), and European Protected Sites. A significant proportion of the Borough is also within the Green Belt. The Borough contains a number of settlements of varying size ranging from the main settlements of Farnham, Godalming, Haslemere and Cranleigh to large villages such as Witley and Milford, to smaller villages. The historic character and significance of the Borough is also reflected in the presence of 43 conservation areas and around 1800 listed buildings.

The Plan is the ‘daughter document’ of the Local Plan Part 1: Strategic Policies and Sites (adopted February 2018) (LPP1), which amongst other things contains the overall spatial strategy for the Borough, and sets out its housing requirement, including how this will be distributed amongst the settlements. LPP1 includes the allocations and related policies relevant to the Dunsfold Aerodrome new settlement, where it anticipates that around 2600 houses would be developed. LPP2 also sits alongside neighbourhood plans both made and in preparation. The plan period of LPP2 runs to 2031/32.”

Section 19(2)(h) of the 2004 Act requires local planning authorities to have regard to any other local development document which has been adopted by the authority when preparing a development plan document. Regulation 8 of the 2012 Regulations provides that policies contained in a local plan must be consistent with the adopted development plan, unless they are intended to supersede adopted policies. As set out above, LPP2 is a ‘daughter document’ of LPP1, and will form part of the development plan alongside made neighbourhood plans and those currently in preparation when they are made. It is not intended that LPP2’s policies would supersede those of LPP1.”

“In this context, the Council’s position that it is not necessary for LPP2 to identify a five-year supply is a soundly-based one, as it is only one component of the policies directed to this matter in relation to the Borough as a whole. I therefore find no inconsistency with the Framework (at paragraph 68) in these regards, insofar as the requirement for planning policies to identify a five-year supply is concerned, as this LPP2 does not contain all of the development plan policies relevant to the area. Neither is the expressed purpose of the LPP2, as set out either in the terse description given in the LDS, or in the fuller explanation set out in the Plan’s introduction, to establish a five-year supply. Furthermore, due to the modular nature of the development plan relevant to the Borough, neither is it necessary for the LPP2 to seek to meet the area’s objectively addressed needs, or its affordable housing requirement in full. Nevertheless, meeting the requirements for the settlements named above is a legitimate focus for its policies and one to which I return more fully below.”

In my view, this was an exercise of planning judgment which he was entitled to make.

Moreover, LPP2 seeks to bring forward a considerable number of allocations in a Borough heavily constrained in development terms by both AONB and the Green Belt, alongside a number of other relevant designations. As a result, the delivery of LPP2’s allocations would make a significant contribution to the Borough’s housing supply. Consequently, the timely adoption of the LPP2 weighs in favour of it in housing supply terms, as opposed to a lengthy process which sought to retrofit remedial actions to address perceived weaknesses of LPP1 as MMs to the LPP2. These matters would, in any event, go clearly beyond the expressed scope of LPP2. Furthermore, LPP2 is not solely focused on the provision of housing and covers a wide range of land use planning issues. These considerations taken together with the modular nature of the development plan lead me to the view that the potential implications of the Framework in terms of decision-making on applications for residential development, should the Council be unable to demonstrate a 5 year supply, do not undermine the overall effectiveness of LPP2, or indicate that it has not been positively prepared.”

This was clearly an exercise of planning judgment that the Inspector was entitled to make.

Summary of conclusions

“Witley (including Milford) Requirements

LPP1 includes Policy SS6, an allocation for a strategic housing site at Land opposite Milford Golf Course, which subsequently gained full planning permission for residential development in November 2021. In addition to allocating the site for housing, LPP1 removed it from the Green Belt by way of boundary alterations, which were found to be justified by exceptional circumstances. Indeed, on the basis of its assistance in meeting housing needs, its sustainable location, its degree of enclosure, its limited impact on important characteristics of Green Belt function, and that it would enable a strong Green Belt boundary, the Inspector’s Report on LPP1 concludes that the site is “very well-chosen”.

However, the SS6 site is subject to a restrictive covenant which places limitations on its development, meaning that the planning permission cannot currently be implemented. The beneficiaries of the covenant have made it clear that they do not intend to remove the restriction it imposes voluntarily. The Law of Property Act 1925 (the 1925 Act) makes provision (in s84) for application to the Upper Tribunal to discharge or modify restrictions arising under covenants where the Tribunal is satisfied that certain grounds are met. At the time of closure of the hearings in September 2022, no such application had been made.

Nevertheless, the site was actively promoted as an allocation during the preparation and examination of LPP1. Moreover, activity relating to the site has progressed further with full planning permission being secured, followed by work relating to the discharge of planning conditions. These actions clearly point to a willingness to secure development on the site on the part of its promoters. Against this background, it has not been demonstrated that the lack of progress in terms of a s84 application, is evidence of reduced appetite on the part of the site promoters to pursue the development of the consented scheme. Furthermore, it is clearly a reasonable position on their part to secure full planning permission for the site prior to applying to the Upper Tribunal.

The outcome of any application pursuant to s84 is of course, unknowable at this point. I have been provided with several decisions of the Upper Tribunal and appeals pursuant to them, which are on the whole, fact specific. None are directly analogous to the proposals relating to the SS6 site. It is also relevant that the legal opinion provided on behalf of the beneficiary of the covenant, estimates “at least 70%” chance of success for their client in any such action – which leaves around a 30% chance, even on their analysis, that the case could go the other way. Taking these considerations together leads me to the view that there is at least a reasonable prospect at this stage that a s84 application could be determined in favour of the development as proposed.

Estimates of the time it may take for a s.84 application to be determined have been suggested during the examination. At this stage, it is likely that there would be implications for the extant planning permission, particularly if the commencement of development does not take place within the relevant timeframe required by conditions (i.e. November 2023). However, if the permission were to lapse it is open to the site promoters to progress fresh planning applications, which would benefit from the site’s removal from the Green Belt as a result of LPP1, and from work that has supported the extant permission.

It is clear, however, that the outcome of a s84 application may mean that the restrictive covenant remains in place for the remainder of the plan period and thus could inhibit the development of the site. It may also be the case, despite the position set out in their SoCG with the Council, that the site promoters decide against progressing a s84 application. Nevertheless, it is relevant that two plan reviews are likely to take place (one of LPP1 and one relating to LPP2) before the site is anticipated to deliver the bulk of its housing. This means that progress in respect of the SS6 allocation can be monitored actively and that any necessary alterations to the development plan’s approach to the site in particular, and Witley’s requirement more generally, can be adequately reflected in any updates. Taken together with the consideration of exceptional circumstances necessary to make Green Belt boundary alterations, which are set out in detail below, the above matters lead me to the view that it remains reasonable at this stage to include the anticipated yield of the SS6 site as a commitment against Witley’s housing requirement.”

Claimants’ submissions

“Developable: To be considered developable, sites should be in a suitable location for housing development with a reasonable prospect that they will be available and could be viably developed at the point envisaged.”

Defendants’ submissions

Conclusions

“Milford

Milford is proposed for removal from the Green Belt. As discussed above, this is justified by exceptional circumstances as it would enable the village to cater for modest development needs.

It is also proposed to release land from the Green Belt for strategic housing site SS6, land opposite Milford Golf Course, which is allocated for around 180 dwellings. Although partially serving Milford, this site is also well related to Godalming. It is relatively flat and well-enclosed and development would have very little effect on the wider landscape or on the openness of the Green Belt other than the site itself. The Green Belt Review pointed towards the potential for release of this land and the setting of a long-term village development boundary in conjunction with the removal of the whole village from the Green Belt.

In the pre-submission consultation version of the plan, this land was shown as a strategic site for housing but was not removed from the Green Belt, the expectation being that the Green Belt boundary would be adjusted later, in Local Plan Part 2. However, it is not a sound approach to allocate a strategic site for housing but leave it in the Green Belt as this would signal mixed intentions and undermine the value of the housing allocation. MM12 modifies Policy RE2 to remove the land from the Green Belt; this is consistent with the housing allocation and enables the site to be brought forward earlier to help meet the housing requirement.

There is an 88 year old covenant on the land limiting development to 27 dwellings. Covenants are not normally planning matters, but it has been suggested that, were delivery restricted to only 27 dwellings, this would not represent the exceptional circumstances required to support the change in the Green Belt boundary. However, the need for housing land to be made available in the public interest and the strategic exceptional circumstances for Green Belt release point to a reasonable prospect of the covenant being varied, modified or discharged under s84 of the Law of Property Act 1925 to enable the full capacity of the site to be achieved.

……

Having regard to the characteristics of the site opposite Milford Golf Course, the pressing need to provide for additional housing, the ability of the site to help towards meeting the housing needs of both Godalming and Milford, the sustainable location of the site, the fact that it is well enclosed and would enable a strong new Green Belt boundary to be established, and the limited impact that the site’s release would have on the important characteristics of Green Belt function, it is evident that this is a very well-chosen site and its release from the Green Belt is justified by exceptional circumstances.”

As to modification, ultimately that is a decision for the upper tribunal. However, in the Council’s view there are a number of features in this case which militate strongly in favour of an appropriate modification being made, in light of the clear public interest that is impeded by strict adherence to the terms of the restrictive covenant. They have largely been set out before [FN 4: This note should be read in conjunction with the Council’s two previous notes on this issue, and is intended to be supplemental to those notes.] and have not changed to the detriment of the Council’s position. The Council continues to consider that the public interest case is compelling. The relevant factors include:

MGC benefits from its allocation and status as a strategic site (i.e. necessarily one of importance to both the overall integrity of the local plan and to the provision of appropriate levels of housing in Witney and Milford).

That allocation was made on the basis that exceptional circumstances had been demonstrated. The connection of such a case to a strong public interest is both clear and obvious.

Inspector Bore concluded, for the reasons he stated, that the site was very well chosen.

The development will provide a substantial number of new homes. Against that, the only claim in terms of an enforceable covenant is that one property will suffer significant detriment.

MGC now benefits from full planning permission, without any suggestion that there is a significant impediment to it being built out if the covenant is suitably modified.

The “reasonable user” part of the statutory test is therefore, in the Council’s view, highly likely to be taken as satisfied.

The significance of the detriment mentioned above will in any event be mitigated by a number of factors including the various conditions which apply to the Permitted Scheme, and the general requirement of high quality design.

In that respect, in granting the planning permission, the Council was of the view that it would not result in significant (or even material) detriment to Upper Sattenham in terms of its residential amenity.

The covenant is old, and was not imposed during the purchase of the property by the Houses. The public interest in enforcing contractual rights (as opposed to property rights) therefore does not have full force in this case. The public interest in enforcing property rights remains.

The covenant does permit significant development on the land. It is a prohibition designed to limit, not prelude, development of the land.”