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Waverley wins High Court challenge over local policies

Words: Laura Edgar
Legal challenge dismissed / Shutterstock_499897465

A deputy High Court judge has rejected legal challenges against policies in Waverley Borough Council’s local plan and a secretary of state decision to approve 1,800 homes at Dunsfold Aerodrome.

The decision was made on 5 November after a hearing at the High Court on 9 and 10 October 2018.

The challenges were made under s113 of the Planning and Compulsory Purchase Act 2004. The policies in question were:

  • ALH1 – this sets out a figure of 519 dwellings a year;
  • SS7 – this allocates the new settlement at the aerodrome for 2,600 homes; and
  • SS7A – sets out the Dunsfold Aerodrome design strategy in the Waverley Borough Local Plan Part One (LPP1).

The Campaign to Protect Rural England (CPRE) Surrey branch challenged ALH1. POW Campaign Limited, which represents local residents in the Dunsfold area and the Waverley population more widely, challenged all three policies.

A further challenge was made under s288 Town and Country Planning Act 1990 against a decision taken by the secretary of state on 29 March 2018 to grant planning permission for a new settlement of 1,800 homes at Dunsfold Aerodrome. This was brought by POW.

With regards to the s113 challenges, both POW and CPRE Surrey believe the council and the local plan inspector acted unlawfully in adopting LPP1 because they included 50 per cent of the unmet need from Woking borough in the local plan, which was adopted in February this year.

Both POW and CPRE Surrey also contended that the inspector had failed to give adequate reasons as to why he had included a proportion of Woking’s unmet housing need in Waverley’s local plan.

Another issue highlighted by deputy judge Nathale Lieven QC was that the s288 challenge relies on the s113 challenge, and falls away if that is rejected.

“However, if the s113 challenge is accepted there is then a further issue as to the legal consequences of an error of law in the local plan process, for the secretary of state's decision on the planning application”.

POW said the grant of planning permission in reliance on LPP1 is undermined by the alleged unlawfulness of the adoption of LPP1. Therefore, the s77 decision should be quashed pursuant to s288.

Lieven concluded that the local plan inspector was place in a “difficult” position. “For the plan to be sound he had to establish a figure for the OAN in Waverley, and ensure the plan sought to meet that OAN and unmet need in the HMA [housing market area], see NPPF para 182. However, he was not carrying out the Woking Local Plan examination and indeed Woking is very far off any such stage of its plan-making process. He did not have, and realistically could not have had, all the evidence which would have been necessary to determine whatever local plan housing requirement figure Woking will ultimately bring forward. The inspector was carrying out a fundamentally different exercise from any future Woking Local Plan inspector.”

In dismissing the applications, she stated that the inspector took a “sensible, pragmatic and in my view lawful approach”. There is undoubtedly going to be some unmet need in Woking, some of which “beyond doubt” “would have to be met in Waverley”.

Lieven rejected the s113 challenges.

The challenge against the secretary of state decision was called in after the council approved the 1,800-home application. The inspector recommended approval.

Lieven noted that the only challenge to his decision was on the grounds that he relied upon the local plan policies that were the subject of the s113 challenge. As she dismissed the s113 challenges, the s288 challenge could not succeed and was also dismissed.

Julia Potts, leader of the council, said it is pleased to have been vindicated in the High Court.

“Although I understand that planning for our future isn’t an easy subject, it is essential that we have a local plan that enables us to have the control to shape our borough for future generations. Now we can continue getting on with doing just that.”

The full judgment can be found here.

Read more:

Appeal: 1,800 homes for Surrey aerodrome branded ‘unsustainable location’ in 2009

Javid calls in 1,800-home Surrey development on Top Gear site

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