House v Waverley Borough Council and Secretary of State for Levelling Up, Housing & Communities [2023] EWHC 3011 (Admin)

Jack Smyth successfully represented the Secretary of State before Mrs Justice Lang in resisting a challenge against Waverley’s Plan. The part 2 plan was criticised on the basis that it was unsound because, upon adoption, it failed to demonstrate a five year supply of housing sites.

At para 81, the judge noted:

The adoption of a modular approach to the development plan is, in principle, permissible: see per Lindblom LJ in Oxted, citing Gladman, at [31], and at [38]. The Council, in the exercise of its planning judgment, had decided that LPP2 should be a “daughter document” to LPP1, and presented LPP2 for examination on that basis. The Inspector was entitled, in the exercise of his planning judgment, to accept the Council’s approach as appropriate.

The claimant argued that the inspector had closed his mind to the question of whether the part 2 plan ought to be more ambitious in meeting the objectively assessed housing needs of the borough beyond that provided for in part 1. At para 87, the judge answered the criticism as follows:

Contrary to the Claimants’ submissions, the Inspector did not treat the scope of LPP2 as “forbidden territory” which he should not consider, even if that was the approach the Council invited him to take. I note that in Oxted, at [40]-[41], Lindblom LJ approved the Inspector’s assessment of the submissions on the scope of the development plan, and did not suggest that the Inspector should simply have refused to consider such submissions. I consider that, in principle, an Inspector may consider issues of scope under section 20(5)(a) – (b) PCPA 2004, although the analysis in Gladman and Oxted indicates that challenges to scope will rarely succeed.

Jack says:

This case provides a further illustration (if any was required) that it is very, very difficult to succeed with statutory challenges to local plans. Here, the judge was invited to go through the transcript from the livestream of the Examination to satisfy herself that the issues which formed the basis of the claim had been ventilated as part of the scrutiny of the draft plan.

Read the full judgement here: