[2011] EWHC 3430 (Admin)

Judgment was handed down in this case on 19 December 2011 and is relevant to anyone seeking either to object to or rely on an emerging development plan document. The case highlights the duty on planning inspectors, when reporting on the soundness of a local planning authority’s development plan documents, to properly consider the issues raised during the examination process and demonstrates that the courts are willing to rule against an inspector’s findings regarding soundness of a development plan document if the inspector has not fulfilled this duty.

The facts

Bromley Borough Council’s proposed Bromley Town Centre Area Action Plan (a development plan document) was considered by an inspector at an examination in public, as legally required. The claimant, Linden Homes, who was interested in redeveloping a railway station site covered by the Area Action Plan (AAP), raised a number of objections to the AAP policies, which were considered at the examination. In particular, Linden Homes opposed a policy providing for 250 homes to be created on the railway station site on the basis that limiting the number to 250 rendered their scheme unviable in financial terms and would achieve a density level below that which was acceptable for such a location. Linden Homes provided a report from planning consultants and an assessment of economic viability by BNP Paribas to support their position.

The inspector concluded that the Area Action Plan was legally ‘sound’. Linden Homes claimed that it was not sound because, essentially, the inspector had failed to take into account the evidence base in reaching his conclusions. In particular, the inspector had failed to grapple with the principal issue and an important element of the case, his conclusions on viability were purely speculative and he had not given sufficient reasons for his conclusion.

The decision

The court held in favour of Linden Homes and declared the AAP unsound. It ruled that: (1) the conclusions that the inspector drew in relation to the housing figures did not appear to comply with relevant guidance. The “soundness” of a development plan document depends on it being founded on a robust and credible evidence base and on it being deliverable, flexible and able to be monitored. Alternatively, the reasons given by the inspector in relation to these important issues did not enable Linden Homes to understand why the inspector reached the conclusions that he did – although reasons may be brief, comprehensible reasons must be given; (2) the inspector failed to take account of material evidence which goes directly to the issue of viability of the AAP; (3) it was perfectly appropriate to categorise the inspector’s conclusions on viability and alternatives as purely speculative, the inspector did not grapple with the evidence of the bank, which was unchallenged and which directly contradicted his findings; and (4) the inspector had not grappled with the evidence, as he had been bound to do in these circumstances. The inspector’s approach had been flawed on the grounds of procedural fairness on that point.  

Developers with a scheme affected by an emerging development plan document should consider scrutinising the case made by the local planning authority to assess whether there are points which are vulnerable to challenge.