Stevenage Borough Council, R (on the application of) v Secretary of State for Communities and Local Government & Anor

During the preparation of development plan documents, a local planning authority must have regard to the relevant regional strategy, but the statutory requirement of general conformity applies when the document is submitted for examination. The authority may therefore consider the prospective revocation or evolution of a regional strategy at the earlier preparation stage.

When assessing soundness, an inspector must address practical deliverability and may take account of lawful decisions by neighbouring authorities, including a decision not to co-operate. The inspector must assess the plan on the realities demonstrated by the evidence, rather than on assumptions that an unwilling authority will later co-operate or adopt a conforming plan.

Stevenage Borough Council challenged an inspector’s recommendation that its Core Strategy was unsound. The strategy depended substantially on housing development in North Hertfordshire District Council’s area and on continuing joint working between the two authorities.

North Hertfordshire had suspended co-operation and adopted a local development scheme allowing for a later Core Strategy which might take account of the proposed abolition of regional strategies. Stevenage argued that North Hertfordshire remained obliged to plan in conformity with the East of England Plan throughout the preparation process, and that the inspector should assume the necessary housing provision and co-operation would occur.

The central issues were the stages at which the statutory conformity obligation applied and whether the inspector could treat the absence of practical co-operation as relevant to soundness.

1. Claim dismissed. The inspector’s recommendation was lawful.
2. Section 24(1) of the Planning and Compulsory Purchase Act 2004 requires local development documents to be in general conformity with the regional strategy. Read with section 20, that obligation applies when the document is submitted for examination. It does not impose an earlier obligation of general conformity throughout preparation.
3. Section 19 imposes a different and more flexible obligation. During preparation, the document must be prepared in accordance with the local development scheme and the authority must have regard to the matters specified in section 19(2), including the regional strategy. That permits the authority to consider how the regional strategy may evolve and the prospect of its revocation.
4. The reasoning in Cala Homes (South) Limited v Secretary of State for Communities and Local Government [2011] EWCA Civ 639 concerned the inflexible conformity obligation at the submission and examination stage. It did not make section 19 equivalent to section 24, nor did it determine the effect of prospective revocation on soundness.
5. Soundness necessarily involves practical implementation. Where a strategy depends critically on land and co-operation outside the authority’s area, the inspector may consider the neighbouring authority’s lawful decisions, stated opposition, timetable and lack of commitment. The inspector cannot lawfully decide that the plan is sound on the basis of a fiction that the necessary co-operation or a conforming neighbouring plan will exist.
6. The challenge could not indirectly attack North Hertfordshire’s earlier decisions when those decisions had not themselves been challenged and North Hertfordshire had not been joined as a defendant in a direct judicial review. The inspector was required to treat those decisions as lawful and assess the Stevenage strategy accordingly.
7. On the evidence, the absence of co-operation, infrastructure uncertainty and the plan’s dependence on North Hertfordshire meant that the Core Strategy was not realistic, achievable or deliverable. The unusual circumstances did not justify giving the statutory provisions a different meaning or assuming facts contrary to the evidence.