Oxted Residential Ltd v Tandridge District Council

A development plan may comprise modules prepared at different times under different national policies. Its soundness must be assessed by reference to its true scope and purpose. A detailed development-management document supporting an existing core strategy need not reassess objectively assessed housing need where establishing a new housing requirement forms no part of its function.

There is no statutory rule preventing adoption of a Community Infrastructure Levy charging schedule because the relevant plan may be out of date. The authority must use appropriate available evidence and strike the prescribed balance between infrastructure funding and the area-wide effect on development viability.

The developer challenged the council’s simultaneous adoption of a detailed local plan and a Community Infrastructure Levy charging schedule. The local plan challenge was brought under section 113 of the Planning and Compulsory Purchase Act 2004. The charging-schedule challenge was brought by judicial review.

Dove J dismissed both challenges in [2015] EWHC 793 (Admin). The developer appealed, arguing that both documents unlawfully relied on a core strategy prepared before the National Planning Policy Framework and without an assessment of the district’s full, objectively assessed housing need. The central issues were whether that omission prevented the detailed plan from being sound and whether an allegedly out-of-date plan could lawfully support the charging schedule.

1. Both appeals dismissed. Challenges to the soundness of a development plan document will seldom succeed. Soundness is primarily a matter of planning judgment. Under section 113 of the Planning and Compulsory Purchase Act 2004, the court intervenes only on ordinary public law grounds, including perversity, failure to consider legally material matters, or misinterpretation of policy.

2. The statutory scheme permits a development plan to be assembled from several documents. An examiner must identify the true scope and purpose of the particular document before judging its soundness. This detailed plan supported the existing core strategy and supplied development-management policies. It neither replaced the strategy nor purported to establish a new housing requirement. The council and examiner therefore had no duty in this process to determine objectively assessed housing need or the existence of a five-year housing-land supply.

3. The status of the disputed policies under paragraph 49 of the National Planning Policy Framework was not a soundness question for this examination. Paragraph 49 concerns decisions on housing applications. Whether a particular policy affects the supply of housing, whether it is up to date, and what weight it should receive are matters for the decision-maker determining a subsequent planning application. The inspector rationally concluded that the detailed policies reflected the Framework’s policies on garden development, design, rural settlements and the Green Belt.

4. A challenge to adoption of a Community Infrastructure Levy charging schedule is also confined to public law grounds. The charging authority has a wide range of judgment in choosing appropriate available evidence under section 211(7A) of the Planning Act 2008 and in striking the balance required by regulation 14(1) of the Community Infrastructure Levy Regulations 2010.

5. No statutory provision required a recently adopted or fully up-to-date plan before the charging schedule could be adopted. The examiner rationally accepted that the schedule could fund infrastructure associated with development under the existing strategy and could later be revised. He considered the applicable guidance, infrastructure funding gap and viability evidence. His conclusion that the rates preserved the viability of a range of development across the authority’s area satisfied regulation 14(1).

1. Court of Appeal (Civil Division): In [2016] EWCA Civ 414, unanimously dismissed both appeals and upheld the adoption of the detailed local plan and the Community Infrastructure Levy charging schedule.
2. Administrative Court, Planning Court: Dove J dismissed the section 113 challenge and the judicial review claim in [2015] EWHC 793 (Admin).