Uplift in local plan housing target found lawful

A local plan examiner made no legal error in recommending an increase in a Surrey council's housing requirement to meet an adjoining authority's needs, the Court of Appeal has concluded.

Before submitting its local plan for examination, the council had been worked with two adjoining boroughs councils in preparing a strategic housing market assessment. The neighbouring boroughs were less advanced in their preparation of local plans. During his examination into the first council’s plan, the inspector recommended that it should seek to accommodate half the unmet housing need of one of its neighbours, which in his view faced significantly more constraints on new housing development. Accordingly, the council published modifications to include an uplift in the annual housing requirement and the plan was ultimately adopted.

The council’s decision was challenged under section 113 of the Planning and Compulsory Purchase Act 2004 on the grounds that the inspector had taken an unlawful approach to the treatment of unmet housing need in the neighbouring borough and his reasons for doing so were inadequate. In the High Court, deputy judge Nathalie Lieven QC recognised that the inspector had been placed in a difficult position because, in order to find the plan sound, he had been obliged to establish the borough’s objectively assessed need taking into account any unmet need in the wider housing market area.

In her view, he had used his planning judgement in determining what proportion of the unmet need should be met within the borough, despite the absence of any draft plan for its neighbour. She also ruled that the inspector had not been required to undertake a detailed, mathematical assessment of the need that could be met in the neighbouring area and had adopted a broad-brush approach for which detailed and cogent reasons had been provided. The challenge was dismissed.

Lord Justice Lindblom, following the judgment in Jelson Ltd v Secretary of State for Communities and Local Government [2018], noted that the responsibility for assessing housing need lay with the decision-maker, namely the inspector. He found that it was generally agreed that the defendant council had to meet part of its neighbour’s unmet housing need and that it was not wrong in principle for this to be included as part of the annual housing requirement. This was consistent with paragraph 182 of the 2012 National Planning Policy Framework, he opined.

Neither was the inspector required to seek more information on housing need than had been provided to him during the course of the examination, the court held. It also confirmed that while inspectors can recommend that a local plan is subject to early review, there is no legal obligation for them to recommend that councils adopt such a course of action. Consequently, it ruled, there had been no error in law on this point either.

CPRE Surrey v Waverley Borough Council and Secretary of State for Housing, Communities and Local Government

Date: 31 October 2019

Ref: [2019] EWCA Civ 1826



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