Cooper Estates Strategic Land Ltd v Royal Tunbridge Wells Borough Council

  Town and country planning – Development plan – Core strategy – Defendant local planning authority adopting site allocations local plan – Claimant arguing land in green belt should be allocated for institutional housing for elderly or removed from green belt – Claimant seeking to quash defendants’ decision – Whether defendants misunderstanding core strategy requirements or expectations of SALP in relation to housing for the elderly or removal of sites from green belt – Whether defendants misunderstanding or failing to deal with claimant’s case on housing for elderly – Whether defendants misunderstanding requirements of core strategy – Whether defendants misunderstanding law in relation to considering events after adoption of core strategy – Claim dismissed The defendant local planning authority adopted a site allocations local plan (SALP). On adoption, it became a development plan document (DPD). It had been through a public examination by an inspector and his modifications had been accepted. The claimant company had argued at the examination that its land at Sandown Park, a site in the green belt, should be allocated for institutional housing for the elderly, failing which, it should be removed from the green belt. It was unsuccessful on both counts. The claimant challenged the adoption of the SALP under section 113(3) of the Planning and Compulsory Purchase Act 2004. The claimant contended that the inspector had: (i) misunderstood what the core strategy had required or expected of the SALP in relation to housing for the elderly or for the removal of sites from the green belt; (ii) misunderstood or failed to deal with its case for a site allocation or removal of the site from the green belt; and (iii) misunderstood the law in relation to his considering events arising after the adoption of the core strategy for the purpose of applying the core strategy to the SALP. Held: The claim was dismissed. (1) The core strategy did not require the SALP to identify or quantify the specific need for C2 housing for the elderly, including residential care homes. It had only quantified the general housing requirement to be met. There was no express or implied core strategy requirement for any need which there might be met by specific allocations for C2 housing. The inspector had reached a wholly unassailable planning judgment that the SALP was sound in the approach adopted. Allocations were not been required to meet the need. Other means would suffice. Although the inspector’s report had not specifically set out part of the claimant’s argument and rejected it, the court could not infer that he had not had the claimant’s case in mind when reaching his conclusions. The inspector in his report had consistently tested the SALP against the core strategy and found it consistent and sound. That was a planning judgment he was entitled to reach and was not unlawful. (2) The core strategy did not say that no green belt land should be allocated, only that its general extent would be maintained, which did not preclude some minor changes. However, the inspector did not suggest otherwise. He had taken the conventional approach: before releasing land from the green belt for development, otherwise than on a review of the green belt, the strategy of the core strategy, followed in the SALP, had to be considered. That was to give priority to the use of previously developed land, then greenfield sites within the limits of built development and then adjacent land. For green belt land to be released for development by the SALP, outside a review at least, an exceptional case would have to be shown. There had simply been no need for such an allocation to meet the housing requirements of the core strategy. The defendants’ reasons for not having a review had been set out, heard and accepted by the inspector. He had been entitled to hold that it was reasonable to conclude that the SALP was nonetheless sound. The information which a review would have afforded had not been necessary for soundness. That had been a planning judgment for the inspector and it was not irrational. The absence of a review did not mean that he was bound to conclude that the SALP had not been consistent with the core strategy. The obligation of consistency permitted some departures, the significance of which was for the inspector to judge and he had reached a reasonable and adequately reasoned view on that point. The inspector had also been judging the consistency of the SALP with the core strategy. The review did not have to be performed in the plan itself. The review obligation was a parallel obligation, not a SALP obligation, though it could inform the SALP: Gladman Development Ltd v Wokingham Borough Council [2014] EWHC 2320 (Admin) applied.  (3) The court was far from clear that there was any significant internal inconsistency in the SALP, comparing the post-core strategy changes taken into account, and the refusal to assess the need for C2 housing by reference to a draft strategic housing market assessment (SHMA) for the relevant period or error by the inspector in not correcting it in the way the claimant sought. It was not for the SALP to carry out a full objective assessment of housing needs. It was but a speculative assumption on the claimant’s part that the draft SHMA could have been taken into account without a full and final assessment of housing needs, which it had clearly not been for the SALP, let alone the inspector, to undertake. However, whether or not a legitimate complaint on the planning merits, it had no traction as a point of law. There was no basis for saying that the inspector’s conclusion on housing needs for the elderly contained an error of law over soundness or consistency, even if there had been an internal inconsistency in the SALP. The inspector had had no basis for coming to any other conclusions on soundness and consistency with the core strategy: Oxted Residential Ltd v Tandridge District Council [2016] EWCA Civ 414; PLSCS 124 considered. Gregory Jones QC (instructed by Blake Morgan LLP) appeared for the claimant; William Upton (instructed by Sharpe Pritchard) appeared for the defendants. Eileen O’Grady, barrister  Click here to read a transcript of Cooper Estates Strategic Land Ltd v Royal Tunbridge Wells Borough Council.