Barker Mill Estates (Trustees of) v Test Valley Borough Council & Anor

In challenges to local plans and planning appeal decisions, the court distinguishes the objective interpretation of planning policy from its fact-sensitive application. The latter is ordinarily a matter of planning judgment reviewable only for public-law error or irrationality.

The assessment of housing need in plan-making follows the two-stage approach: full objectively assessed need is identified without policy constraints, then deliverability, viability and sustainability may affect the housing requirement. A local plan is not "silent" merely because it does not allocate a site for every identified need, if its policies as a whole permit the proposal to be determined in principle. The presumption in favour of sustainable development is contained in paragraph 14 of the NPPF; there is no separate wider presumption.

The trustees, who promoted land at Adanac Park for development, brought two connected statutory challenges.

• Under section 113 of the Planning and Compulsory Purchase Act 2004, they challenged the adoption of the Revised Test Valley Local Plan. They alleged errors concerning objectively assessed housing need, the duty to co-operate and provision for B8 storage and distribution floorspace.
• Under section 288 of the Town and Country Planning Act 1990, they challenged an Inspector's dismissal of their appeals for B8 development on two Adanac Park plots. The Inspector had allowed a separate appeal for B1 development on another plot.

The central issues were whether the plan and the Inspector had misapplied the NPPF, and whether the challenged planning judgments were irrational or inadequately reasoned.

1. The claims were dismissed. The section 113 challenge to the Revised Test Valley Local Plan failed. Permission was granted on grounds 1 and 2 of the section 288 claim but refused on grounds 3 and 4; the substantive section 288 claim was dismissed.

2. The court applied the distinction in Tesco Stores Limited v Dundee City Council [2012] PTSR 983. The construction of planning policy is a question of law, but its application commonly involves planning judgment. Challenges to that judgment require irrationality, not a rerun of planning merits.

3. The Council and examining Inspector had correctly followed the two-stage approach in Solihull Metropolitan Borough Council v Gallagher Estates Limited [2014] EWCA Civ 1610. The overall housing figure of 588 dwellings annually was an objective assessment of market and demographic need. The separate affordable-housing need had been identified. The decision not to raise the housing requirement to 834 dwellings annually was a second-stage judgment based on market demand, deliverability, viability and sustainability. No separate figure for market housing alone was required.

4. The Inspector could rationally conclude that the Council had complied with section 33A of the Planning and Compulsory Purchase Act 2004. The Inspector had evidence of extensive cross-boundary working and was entitled to find that a formal request to neighbouring authorities to meet the affordable-housing shortfall would have achieved nothing.

5. The B8 shortfall point should have been raised at the local-plan examination. A claimant should not ordinarily use a section 113 challenge to advance a new factual or policy soundness issue which could have been examined publicly and might have required evidence and planning judgment. In any event, the plan's employment policies, read as a whole, supplied allocations and mechanisms for addressing residual B8 needs. The contrary planning judgment was not irrational.

6. For the planning appeals, the Inspector was entitled to find that the plan was neither silent nor out of date. The correct question was whether the plan contained a sufficient body of policy to determine the proposed development in principle, not whether it identified the location of every B8 site.

7. The court disapproved the view in Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin) that the NPPF creates a general presumption outside paragraph 14. Paragraph 14 itself governs both plan-making and decision-taking. It favours proposals which accord with the development plan and, in specified circumstances, grants permission unless the stated countervailing considerations apply.

8. The Inspector had considered viability, employment benefits, the alleged trigger effect, and the alternative of allowing only the smaller proposal. Her reasons were adequate and disclosed no public-law error.

9. The claimants were ordered to pay the Council's costs of the section 113 claim and the Secretary of State's costs of the section 288 claim. The Council was refused a second set of costs in the section 288 proceedings because it had established neither a separate issue nor a separate interest requiring separate representation.

These were first-instance statutory challenges.

• Test Valley Borough Council: adopted the Revised Test Valley Local Plan on 27 January 2016 following an examination and the Inspector's recommendation that the plan, with main modifications, was sound.
• Planning Inspector acting for the Secretary of State: by decision letter dated 9 March 2016, allowed an appeal for B1 development on one Adanac Park plot but dismissed the appeals for B8 development on plots AP2 and AP3.
• High Court: dismissed the challenges under section 113 of the Planning and Compulsory Purchase Act 2004 and section 288 of the Town and Country Planning Act 1990.