Planning permission - Development - Claimant local authority submitting core strategy and development plan documents for examination

R (on the application of Stevenage Borough Council) v Secretary of State for Communities and Local Government and another: Queen's Bench Division, Administrative Court (London) (Mr Justice Ouseley): 1 December 2011

On 26 May 2010, the claimant local authority (the authority) submitted its core strategy and other development plan documents (DPDs) for examination by an inspector appointed by the defendant secretary of state. As was required by statute, at that stage the DPDs had to conform generally to the relevant regional strategy, the East of England Plan (EoEP), which they did. On 27 May 2010, the secretary of state had announced his intention to abolish regional strategies and, further, that that intention was to be a material consideration in any ‘planning decisions’.

In November 2010, the inspector advised that the authority’s core strategy had failed to meet the statutory requirement of soundness, as the housing numbers were not justified by the local needs, since the EoEP was to be revoked. A large proportion of the housing planned in the core strategy was to be built in the neighbouring interested party local authority’s (the interested party) area, but the interested party was no longer willing to co-operate in achieving the EoEP strategy of growth for the authority beyond meeting the authority’s own local needs.

In February 2011, the interested party produced a local development scheme (LDS) which envisaged that it would not submit its own core strategy until April 2013. In March 2011, the examination was reconvened. However, in May 2011, the inspector recommended that the core strategy was unsound as the cross-border issues remained unresolved and therefore the strategy could not be delivered. The authority applied for judicial review, seeking an order quashing that recommendation.

The authority submitted that the inspector had wrongly taken into account the secretary of state’s intention to revoke regional strategies and that he had misdirected himself with regard to the obligations of the interested party in preparing its own DPD timetable and the plans themselves. Those plans had had to conform at all stages to the still extant regional strategy, and the inspector ought to have assumed that the interested party would comply with that legal obligation at all stages, including having a plan prepared that provided for the authority’s growth in the interested party’s area.

Accordingly, the authority’s core strategy should have been judged on the assumption that it would have been matched by the interested party, and could not have been regarded as unsound. The application would be dismissed.

In the instant case, it was important to note that there was no direct challenge to the lawfulness of the decisions of the interested party to no longer co-operate with the authority in the implementation of the authority's core strategy; and to adopt a LDS that envisaged that it would not submit its own core strategy until April 2013. It was not possible to attack those decisions indirectly by challenging the conclusions that the inspector had reached about them. It had not been for the inspector to act as a judicial review court in respect of the decisions taken by the interested party.

He had had to take those decisions as lawful ones. Accordingly, he had been obliged to reach his decision on the soundness of the authority's core strategy on the basis that the interested party had acted lawfully in deciding to end co-operation with the authority and in setting the LDS that they had. In reaching a conclusion on soundness, the inspector could not lawfully have ignored the uncertainty and hold a plan to be sound on the basis of a fiction. The inspector's decision being based on a lawful approach by him, there was no possible argument that it was an unreasonable conclusion that the authority's core strategy was unsound (see [27]-[29], [41] and [44] of the judgment). R (on the application of CALA Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] All ER (D) 279 (May) considered.

Timothy Straker QC and Alexander Goodman (instructed by the solicitor to Stevenage Borough Council) for the authority; Charles Banner (instructed by the Treasury solicitor) for the secretary of state; Simon Bird QC (instructed by the solicitor to North Hertfordshire District Council) for the interested party.