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The High Court has handed down judgment in Swindon BC v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 1627 (Admin), which considered the interpretation of policy on infrastructure contributions as well as precedent, in the context of development which formed part of a wider allocation where infrastructure contributions fell short of what the Council deemed necessary. The claim had been marked as “significant” by the Planning Liaison Judge.
The Swindon Borough Local Plan 2026 allocated 700 hectares of land to the east of Swindon to the development 8000 new homes in interlinked but distinct new villages and the expansion of two others, known as the “New Eastern Villages”. Between 2016 and 2021, the Council granted various planning permissions in respect of this allocation.
This claim involved permission in respect of the northern part of a new village called Foxbridge, which included 220 dwellings. There was agreement between the Council and the developer, Danescroft (PCDC IV Swindon) LLP, on the maximum amount of infrastructure contributions which could be afforded and the development remain viable. The issue for the Council arose because this maximum amount was significantly short of what it said were the infrastructure contributions that were necessary to maintain policy compliance. The Council said the maximum viable contributions were a third of the minimum needed. Their estimate took account of an SPD which the Council had adopted which aimed to rationalise the various development across the New Eastern Villages.
The relevant infrastructure policy was Policy IN1, which states that all development, “where appropriate and within the context of economic viability”, shall make provision to meet the cost of infrastructure made necessary by the development itself and cumulatively with other development. The Inspector had accepted the argument of the developer that this required only viable contributions. The Inspector noted the significant shortfall, and dealt with it as a matter in the planning balance.
The Council argued before the Administrative Court this was wrong, and that even though the maximum viable contributions were being made, this was not policy compliant as it was not “within the context of economic viability”. It also argued the Inspector was mandated to consider how any shortfall would be made up.
The Court rejected these arguments. The Judge considered that a requirement of a contribution which was unviable would not be “in the context of economic viability” and therefore outside the scope of Policy IN1. The Judge further considered, where 85% of the allocation had permission and where the matter had not been raised in front of the Inspector, the matter of how the shortfall would be made up was not something that was “so obviously material” that it required consideration by the Inspector.
The Council also argued that the Inspector dealt with its argument on precedent in an unlawful way. The Inspector had rejected an argument made by the Council that his decision set a precedent in respect of other infrastructure contributions because he decided the appeal “on the balance of planning harms and benefits on the individual merits of the particular case”. The Court noted that the issue of precedent had only been dealt with in a few lines in the Council’s closing, and the Inspector was entitled to respond in kind. Further, his consideration was rational.
Lastly, the Council argued that the Inspector irrationally considered a two form entry school was not necessary. On the facts of the case, this argument was also rejected.
Leon Glenister appeared for the Secretary of State, the First Defendant, instructed by the Government Legal Department.
Sasha White KC and Matthew Henderson appeared for Danescroft (PCDC IV Swindon) LLP both at the inquiry and in this claim, instructed by Forsters LLP.
The judgment may be accessed here.
