Whining Sevenoaks throws its Local Plan Toys out of the Pram

After conspiring to cooperate to not meet need does this come as any surprise?  This fake anger is just because they were caught out.  The legal test is clear.  The inspector had no alternative.

Sevenoaks Times

SEVENOAKS District Council [SDC] has ‘expressed serious concerns’ about the impartiality of the government’s Planning Inspector after she sent back its draft Local Plan.

Council leader Peter Fleming pledged to ‘stand up’ to the ‘huge abuse’ of the process by the Inspector, Karen Baker, and the Ministry of Housing, Communities and Local Government.

Ms Baker wrote to SDC calling on it to withdraw the plan because it had failed in its ‘duty to co-operate’ with other councils such as Tunbridge Wells and Tonbridge & Malling to find sites for new homes.

Sevenoaks had defied the government’s quota for housing of 11,312 homes by the year 2035, saying it would only provide 9,410 – almost 2,000 fewer than they have been told to build.

It argued that it could not fulfil the target because 93 per cent of the district is wihin the Green Belt – which can only be used in ‘exceptional circumstances.’

After six months perusing the document, Ms Baker said: “My main concern relates to the lack of constructive engagement with neighbouring authorities to resolve the issue of unmet housing need.”

Among several other problem areas she also criticised the ‘assessment of the Green Belt’.

SDC has countered by saying: “Evidence submitted to the Inspector clearly demonstrates the council had worked closely with its eight neighbouring councils since 2015 when it began the new Plan.

“In April, the council met with the Government’s Planning Advisory Service to discuss its neighbours’ ability to assist with unmet housing need. The meeting confirmed neighbouring authorities could not help.

“Before submitting the plan, the council also sought the opinion of a QC and industry experts, including former senior Planning Inspectors, who also advised the council’s approach was sound.”

Ms Baker had noted that the other authorities were not formally contacted ‘until just before the Local Plan was submitted’.

SDC Leader Peter Fleming said: “It is clear to me the way this has been handled calls into question the integrity of the whole plan-making system in this country.

“The inspector had our submission for six months and asked over 500 questions.

“Had there been a fundamental problem, I would have expected the examination not to have gone ahead from the start.

“As a Council we decided early on that we would follow an evidence-led approach, not prejudging any site and going where our plan-making policy and the evidence took us.

“To call into question an evidence-led approach comes to the root of our concerns with the actions of the Inspector.

“If we are not to follow the evidence to make our plan then the Government may just as well dictate how many homes an area should have and then pick sites.

“We need to put an end to the thinly veiled charade that local plans are in any way locally led.

He added: “But the most damning comment has to be left for the Inspector’s approach, to publish her brief note before allowing the council to either see her full reasoning or have a chance to respond.

“This suggests her mind is far from open and she and her masters have made their minds up.”

Cllr Julia Thornton, Cabinet Member for Development and Conservation, said: “We received more than 235,000 comments and residents told us loud and clear, they wanted us to continue to protect the district while providing new homes and infrastructure for the future.

“Taking the Local Plan off the table puts at risk the new infrastructure, including the schools, medical and leisure facilities, we really need.”

The Duty to Cooperate in Kent – Not a Duty to Agree to Disagree

A duty to cooperate meeting in Kent

Sevenoaks

Excuse me my neighbouring planning authority we have lots of green belt and AONB, can you take some of my unmet housing need?

No we have lots of green belt and/or AONB, by the way can you take some of our unmet housing need?

No

It goes on like this all around the table

The Duty to Cooperate is not a duty to agree to disagree.  The notes presented by Sevenoaks simply shows the lack of a positive process to cooperate to meeti ng housing need, both under the old NPPF (under which the plan was examined) and the new, both in terms of legal process and the DTC soundness test.  The inspector was 100% right.

Remember the legal test ‘to engage constructively, actively and on an ongoing basis to maximise the effectiveness of Local and Marine Plan preparation in the context of strategic cross boundary matters.”

Kent needs to get its act together.  The focussing of major growth areas on the rail line to Ashford is a good strategy, but only if you upgrade the rail line.

Appeal Court dismisses ‘unmet need from Woking’ Challenge to Local Plan

Cornerstone Barristers

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.