Central Bedfordshire Council, R (On the Application Of) v The Planning Inspectorate

Section 33A of the Planning and Compulsory Purchase Act 2004 imposes a duty to engage constructively, actively and on an ongoing basis on strategic cross-boundary planning matters. It is not a duty to reach agreement or to meet another authority’s unmet need in full. Whether the duty has been discharged is a planning judgment for the appointed inspector. Judicial review is limited to whether the inspector could rationally conclude that compliance had, or had not, been shown. The inspector may rigorously examine the evidence, including whether engagement influenced the plan, whether effective delivery arrangements exist, and whether unresolved disagreements reveal gaps in co-operation. A local authority’s intended later plans or future reviews do not necessarily demonstrate present compliance. On the evidence, the inspector rationally found non-compliance, and permission to bring judicial review proceedings was refused.

Central Bedfordshire Council sought permission to bring judicial review proceedings against the Secretary of State and the Planning Inspectorate. The challenge concerned an inspector’s letter dated 16 February 2015, which concluded that the Council had failed to comply with the duty to co-operate while preparing its development strategy and recommended non-adoption of the plan.

The Council alleged that the inspector had applied too high a standard, misunderstood the margin of appreciation, conflated the duty to co-operate with soundness, and failed to consider whether other authorities might meet Luton’s unmet housing need. Permission had been refused on the papers by Foskett J. The renewed application raised whether the grounds were arguable.

1. Permission refused; claim not permitted to proceed. The inspector had correctly understood that the statutory duty to co-operate was distinct from a duty to agree. The relevant question was whether, on the evidence, it was reasonable for him to conclude that the authority had engaged constructively, actively and on an ongoing basis.
2. The inspector was entitled to undertake a rigorous examination of the authority’s documents and hearing evidence. His planning judgment could take account of unresolved strategic housing issues, the absence of a signed and sufficiently specific memorandum of understanding, the limited influence of engagement on the submitted plan, the late involvement of elected members, and deferral of matters to later plans. These matters provided an evidential basis for finding that the process had not been active or ongoing.
3. The inspector did not require Central Bedfordshire to meet all of Luton’s unmet housing need. His reasoning treated Central Bedfordshire as the appropriate starting point because much of the relevant housing market area lay within its administrative area and the memorandum sought to direct the unmet need there. The inspector was entitled to find that future allocation plans and reviews did not establish compliance in relation to the development strategy then under examination.
4. The same approach applied to employment, Green Belt and infrastructure. The inspector was entitled to rely on the absence of effective cross-boundary engagement, uncertainty about the employment strategy, differences in the authorities’ understanding of engagement, and the lack of evidence in the annual monitoring material.
5. The inspector’s conclusion was rational and lawful. The statutory references to reasonableness concerned the inspector’s judgment, not a conclusive presumption arising from the authority’s own belief that its submitted plan was sound. Ground 1 was unarguable, and grounds 2 and 3 were without merit and unarguable. The claimant was ordered to pay the defendant’s costs of £5,614.

Permission was refused on the papers by Foskett J on 11 May 2015. The renewed oral application was refused by the High Court (Administrative Court).