Timothy James House & Anor v Waverley Borough Council & Anor

On statutory review of a local plan, the court reviews legality and public-law rationality rather than planning merits. A development plan may be prepared on a modular basis, with a later document operating as a detailed or “daughter” document to an adopted strategic plan. An inspector may examine whether that scope is sound, but need not require the later document itself to demonstrate the whole authority’s five-year housing land supply or meet the authority’s objectively assessed housing needs in full where those matters are addressed by the development plan taken as a whole.

The inspector’s assessment of whether a site subject to a restrictive covenant has a reasonable prospect of becoming available and being developed is a planning judgment. It will not be disturbed unless irrationality is established.

The claimants sought statutory review under section 113 of the Planning and Compulsory Purchase Act 2004 of Waverley Borough Council’s adoption of Local Plan Part 2: Site Allocations and Development Management Policies.

They owned land benefiting from a restrictive covenant limiting development of land formerly forming part of Milford Golf Course. Local Plan Part 1 had allocated that land for housing and removed it from the Green Belt. Local Plan Part 2 retained the allocation and treated it as contributing to the housing requirement.

The claimants alleged that the inspector had failed to examine the scope and soundness of Local Plan Part 2, had misinterpreted Local Plan Part 1, and had irrationally concluded that there was a reasonable prospect of discharge or modification of the covenant under section 84 of the Law of Property Act 1925.

1. Grounds 1 and 2 dismissed. The inspector had considered the status and scope of Local Plan Part 2, its relationship with Local Plan Part 1, the five-year housing land supply and the delivery of the housing requirement. The Inspector’s Report adequately addressed those issues.
2. The statutory scheme permits a modular development plan. A later document may operate as a “daughter document” supporting an adopted strategic plan. The inspector must identify the true scope and purpose of the document and assess whether, within that scope, it complies with the statutory requirements and is sound. The scope is not “forbidden territory”, although challenges to the inspector’s planning judgment on scope will rarely succeed.
3. Local Plan Part 2 was not required, considered as an individual document, to identify the whole borough’s five-year housing land supply or meet the objectively assessed housing need and affordable housing requirement in full. Those matters could be addressed through the development plan taken as a whole and through review of Local Plan Part 1. The inspector was entitled to conclude that Local Plan Part 2 was consistent with Local Plan Part 1 and national policy.
4. The court applied the established limits of statutory review. Soundness and the weight given to planning considerations are matters for the inspector. The court must read the report fairly and as a whole, without excessive legalism or hypercritical scrutiny. The inspector’s reasons were intelligible and adequate.
5. Ground 3 dismissed. The inspector was entitled to consider whether the promoters were likely to pursue an application under section 84 of the Law of Property Act 1925, because without such an application development could not proceed. The outcome of the application was unknowable, but the evidence supported a planning judgment that there was at least a reasonable prospect of success and that the site was developable within the plan period. The claimants had not established irrationality.
6. The claim for statutory review was dismissed.