Attwaters Jameson Hill planning team advise Dacorum Borough Council

The question that arose in this case is ‘can a Local Planning Authority lawfully adopt its Core Strategy without first having assessed the full housing needs of its area and having considered whether those needs can be met, but committing itself to an early review in which that work will be done’.

Grand Union Investments Ltd challenged the Core Strategy adopted by the Defendant, Dacorum Borough Council, September 2013 by an Application under Section 113 of the Planning Compulsory Purchase Act 2004.

Grand Union Investments Ltd sought the allocation of its site of 35 hectares to the south of Berkhampstead for housing development. The Council resisted that proposal and others like it.  Grand Union Investment Ltd objected to the draft Core Strategy. In November 2012 the Inspector who had conducted the examination of the draft Core Strategy warned the Council that he was unlikely to be able to recommend its adoption unless it was modified.  In the Inspector’s view the Council had failed to demonstrate that it had identified the ‘fully objectively assessed housing needs’  in the Borough and that the needs for housing in the planning period could not be more fully met than it intended.

The Council considered what the Inspector had said and decided not to go ahead with the Core Strategy in its submitted form. At this point the Council could have abandoned or suspended the process. However, it chose another option suggested by the Inspector which was to promote a modification to the Core Strategy under Section 20 (7C) of The Planning Compulsory Purchase Act 2004, that is making Main Modification 28 which committed the Council to an early partial review. This approach was supported by the Inspector in his report to the Council in July 2013 and was then reflected in the Adopted Core Strategy.

The Council says that it was lawful and in the circumstances entirely reasonable; Grand Union disagreed.

Christopher Katkowski appeared for Grand Union Investment Ltd and the main thrust of his argument was that the Main Modification 28 did not address the basic shortcomings in the Core Strategy identified by the Inspector in his preliminary findings and in his report.  The Inspector could only recommend Main Modification 28 if, in the first place, he had found the submitted Core Strategy unsound. He did find it unsound, and he was right to do so. He did not explain why he thought a modification permitting the Council to review the Core Strategy could remedy the substantial flaws in it.  That commitment did not put right the errors the Council had made in preparing the Core Strategy which went to several of the fundamentals in plan preparation. It did not change the inaccurate assessment of housing need.  It did not establish the full objectively assessed need for housing in the Council’s area, for the whole planned period, of paragraph 47 of the NPPF requires. The outcome of the review was wholly unclear.  In these circumstances the Inspector could not reasonably conclude that the review would render an unsound plan sound. The Inspector’s reasons for thinking it would are obscure.

For the Council, Mr Martin Kingston QC, submitted that there was nothing irrational in the Inspector’s analysis and recommendation.  The Inspector clearly had regard to and understood government policy for plan making in the NPPF. He referred to it both in his preliminary findings and in his report.  With the policy in mind he took a pragmatic view.  As he could see, although the Council had not shown that it had established the full objectively assessed need for housing in its area, any shortfall in its allocation of land for residential development was not going to cause problems until later in the plan period. By then, if the allocations turned out to be inadequate the review to which the Council had committed itself would have been completed and the Council would have been able to amend its strategy if it had to. The Council had to bear in mind the need to have its Core Strategy in place as soon as it reasonably could. In taking up the Inspector’s suggestion that it should promote Main Modification 28, it acted entirely reasonably. One has to bear in mind that there is a strong incentive for the Council to get on with its review of the Core Strategy. If it does not do so it will find it more and more difficult to rely on its adopted policies for meeting housing need when making decisions on applications for planning permission.

Mr Justice Lindblomconcluded that he could not accept Mr Katkowski’s arguments. He thought that Mr Kingston’s submissions were essentially correct.  In his view the Council lawfully adopted the Core Strategy, in accordance with the relevant statutory provisions governing the preparation of development plan documents. The judgement reiterated that testing the soundness of the plan is not a task for the Court. It is a task that lies within the realms of planning judgment exercised under the relevant statutory scheme in the light of relevant policy and guidance.  The Court’s jurisdiction is limited to review on traditional public law grounds. The question in this case was whether the Council’s adoption of the plan on the Inspector’s recommendation was irrational. As per established case law a Claimant who seeks to persuade a court that a planning decision maker has lapsed into irrationality will have to demonstrate an unusually bad error of judgment. It must be shown that the decision falls outside the range of judgement open to a reasonable decision maker.

Mr Katkowski argued that the Core Strategy could not be made sound simply by grafting into it a commitment to doing work that was a pre-requisite to its soundness. This was ‘planning to plan’, which is not the same thing as actually planning. Justice Lindblom found that the difficulties with this argument is that it implies an unrealistic and wholly unnecessary constraint upon the Inspector’s Judgement on the question of soundness.  If the Core Strategy is submitted as 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.

Main Modification 28 was, in the Inspector’s judgment, a sufficient solution – a solution proportionate to the problems. Justice Lindblomdid not find that this was an irrational view. On the Contrary it was entirely reasonable. The Inspector describes Main Modification 28 as ‘pragmatic, rational and justified’ and Mr Justice Lindblom agreed that this would be a fair description of those conclusions.

The Inspector neither neglected nor misunderstood any relevant aspect of government planning policy. He plainly had regard to the principles of National Planning Policy bearing on the matters he had to consider.  He refers to the relevant parts of the NPPF, including paragraphs 47, 83 and 159, both in his preliminary findings and his report.  He began his report by acknowledging the four criteria of soundness in paragraph 182.  The assessment which led him to suggest the option of a Main Modification started with his finding that the Council ought to have assessed the full housing needs of its area for the planned period of policy that the NPPF required.  The course he suggested, which the Council followed by promoting Main Modification 28, was intended to ensure that the relevant provisionof National Policy in the NPPF would be met.

Attwaters Jameson Hill advised the Council on a wide range of planning issues and were instructed when this claim was lodged. Members of the Planning Team attended the Council’s Officers immediately in order to advise and discuss the course of action. Robert Jameson (Partner) and Salvatore Amico (Solicitor) managed the conduct of the case and instructing Queens Counsel.  Instructing solicitors were also successful in recovering the Council’s costs.