Linden Homes Ltd v Bromley Borough Council

A development plan document must be founded on a robust and credible evidence base and must be justified, effective, deliverable, flexible and capable of being monitored. An Inspector’s assessment of soundness is subject to judicial review where the Inspector acts irrationally, ignores material guidance or evidence, gives inadequate reasons, or proceeds unfairly on a matter not raised at the examination. Planning expertise permits evaluative judgments, but it does not dispense with the need to explain conclusions or identify the evidential basis for them. A policy allocating housing to a strategic development site was quashed in part where viability, density, alternative delivery and monitoring had not been properly addressed.

The claimant, a house builder involved in a consortium seeking to redevelop Bromley North railway station, challenged parts of Bromley’s adopted Bromley Town Centre Area Action Plan under section 113 of the Planning and Compulsory Purchase Act 2004. The challenge concerned the allocation of “around 250” residential units at Opportunity Site A, together with related development, delivery and phasing provisions.

The claimant alleged that the Inspector had failed to address viability, housing density, alternative delivery arrangements and monitoring, had ignored material evidence and had relied on reasoning that had not been raised at the examination. The central issue was whether the AAP was within the appropriate statutory power and sufficiently sound.

1. Soundness and statutory challenge. The court held that soundness required the AAP to be founded on a robust and credible evidence base and to be justified, effective, deliverable, flexible and capable of being monitored. Although the AAP preceded the Core Strategy, that unusual sequence did not reduce its obligation to comply with the relevant national guidance, including PPS 3 and PPS 12.
2. Delivery and alternatives. The Inspector’s conclusions that the housing figures were not critical and that less comprehensive schemes could be delivered were unsupported by substantial evidence. The report did not explain how alternative schemes could provide both the housing shortfall and the required public transport benefits. The reasons were therefore inadequate and could not enable the claimant to understand the conclusions reached.
3. Density and viability. The Inspector failed to address the claimant’s density calculation and the Greater London Authority’s view that a substantially larger residential scheme was acceptable in strategic planning terms. The unchallenged BNP Paribas evidence indicated a substantial negative residual land value for a 250-unit scheme. The Inspector’s suggestion that future market recovery or adjustments to affordable housing and section 106 obligations might make the scheme viable was speculative and unexplained.
4. Procedural fairness. The Inspector relied on the proposed change in the balance of uses as a reason for rejecting increased housing numbers, although that issue had not been raised at the examination. The claimant had no fair opportunity to respond. The Inspector was entitled to make planning judgments, but his expertise did not cure the absence of evidence, reasons or a fair opportunity to address a new point.
5. Order. The application succeeded. The AAP was held not to be within the appropriate power so far as it concerned Opportunity Site A. The court was minded to quash the relevant provisions and remit the matter to the Council for preparation, publication, consultation and promotion of an AAP for the site in accordance with the Town and Country Planning (Local Development) (England) Regulations 2004, with the precise extent of the quashing to be settled or argued further.

This was a first-instance judicial review challenge. The claimant’s objections had been considered at an Examination in Public by an independent Inspector, whose report was submitted on 11 August 2010. Bromley Borough Council adopted the AAP on 25 October 2010. The High Court allowed the section 113 challenge in relation to Opportunity Site A.