Mr Justice Lindblom has dismissed a challenge brought by Grand Union Investments to the Dacorum Core Strategy

The Inspector concluded in his Report that there was insufficient substantive evidence to enable him to conclude that the original housing provision figure proposed in the submission draft represented full objectively assessed need, and that these needs could not be met by increased provision, including through Green Belt review. However, the Inspector further recommended the Council to commit to an early partial review of the core strategy by way of a Main Modification, in order to investigate ways of assessing and meeting housing need.  This, in his view, would make the document sound and enable him to recommend it be adopted.  The thrust of the challenge to the Inspector’s decision was that a commitment to an early partial review could not rationally make an unsound plan sound.

The Inspector made clear that his recommendation was based on the specific features of Dacorum and the Core Strategy itself: notably the short to medium term trajectory, with over-supply in the first three years, the scale of the shortfall over the whole plan period (circa 15%), and the steps undertaken towards a rigorous and comprehensive Green Belt review. The Inspector observed that such issues as arose could “best be addressed by the preparation of an early review because in the short to medium term the Core Strategy will provide a sound basis on which planning decisions can be taken”. The Council accepted that recommendation and have already commenced work, with the intention to adopt the further modification by 2017/2018, alongside site allocations.

The Claimant brought a section 113 challenge in the High Court to the adoption of the Core Strategy on two core grounds: failure to have regard to NPPF and a breach of the SEA Directive, albeit both were, as they had to be, characterised as irrationality challenges, facing the usual exceptional threshold: “an unusually bad error of judgment”.

On the first ground, the judge identified the crucial question as, “whether in its final form, incorporating the Main Modification, the Core Strategy could properly be regarded as having become sound so that it was, by then, a plan capable of being lawfully adopted” (not whether the core strategy was sound when considered in its originally submitted form at the examination). The Main Modification was, in the inspector’s judgment, a solution which was proportionate to the problem before him, notably the absence of any imminent shortfall in the provision of housing in the borough, a means of ensuring that any shortfall would be made good before it had any practical effect. As an exercise of judgment, it was free from error.

The SEA ground was dismissed on the basis that the review could not have any effects on the environment and there were no reasonable alternatives in the sense of alternative policies or allocations, simply alternative approaches or processes that were incapable of being assessed.

The Judgment may be of assistance to local authorities who need to rely on such review provisions, but this is only if they are able to persuade Inspectors of the overall soundness of that approach in the particular local circumstances.  Whilst the Judgment rejects the proposition that an early partial review cannot make an unsound plan sound[1], it is perhaps best understood as a carefully articulated recognition of the high threshold facing challenges to Inspectors’ planning judgments in the plan-making sphere.

Grand Union Investments v Dacorum Borough Council

Martin Kingston QC and Jenny Wigley, Barristers at No5 Chambers, acted for the defendant, Dacorum Borough Council.

[1] And it makes clear that D.B Schenker Rail (UK) Limited v. Leeds City Council [2013] EWHC 2865 (Admin) is not authority for any such general proposition, it having turned on its own particular facts.