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In Keep Bourne End Green v. Buckinghamshire Council [2020] EWHC 1984 (Admin) the High Court has dismissed an application for statutory review of the Wycombe District Local Plan. The claimant was a local residents’ group concerned about the proposed release of land from the Green Belt to meet housing need. The judgment is of particular interest for several reasons. First, one of the key grounds on which the claim was brought was that the Inspector had wrongly rejected an argument that the Objectively Assessed Housing Need should have been calculated by reference to the ONS 2016 household projections, which indicated lower levels of growth than the 2014 figures on which the Plan had been prepared. The 2016 figures had been published only days before the close of the public hearing sessions, and the Inspector had rejected their use on the grounds that the government had expressed doubts about the methodology and the use of the 2016 figures for plan making, that population projections were only the starting point, that government policy sought to significantly boost the supply of housing, and that a change to using the 2016 figures would delay the adoption of the Plan. Holgate J concluded that there was no error in that approach. The advice in para 158 of the NPPF (as it then was) that local plans should be based on up-to-date evidence, and the guidance in the NPPG that this applied “wherever possible” did not mean the most recent evidence should always be used unless it was “impossible” to do so. Further, while the focus of the government’s Technical Consultation on the 2016 figures had been their use in plans submitted after January 2019, to which the standard methodology applied, the concerns raised by Government were not limited to the use of the projections in the standard method, but were also relevant to transitional plans which predated the 2018 amendments to the NPPF. The Inspector was therefore entitled to treat the MHCLG material as providing evidence of there being doubts about the reliability of the ONS 2016 projections in the context of namely their use for the purposes of plan-making. Second, the fact that the Guildford Local Plan Inspector had concluded that the 2016 projections were a “meaningful change” did not tie the hands of the Wycombe Inspector. Neither decision involved the interpretation of national policy, nor was there any congruent issue in the application of a relevant national policy. Endorsing the reasoning of Ouseley J in Banks, the judge concluded that the two cases were not ‘like’ in any material aspect, and there was accordingly no requirement for the Wycombe Inspector to give reasons for disagreeing with the Guildford Inspector. Third, once the 2016 projections had been dismissed as the relevant starting point for the calculation of the OAHN, there was no requirement for them to be taken into account in the assessment of whether there were exceptional circumstances justifying the release of land from the Green Belt. Fourth, when applying the earlier decisions in Calverton and Compton on the approach to exceptional circumstances, there was no requirement that the proposed development deliver any benefits (such as infrastructure) over and above meeting the need for housing, nor was there any requirement that green belt should only be released as a last resort. Fifth, a policy which required development to contribute to SANG in order to mitigate the potential impact on a European designated site, but did not expressly preclude occupation of the residential units until the SANG had been provided, did not give rise to any breach of the Habitats Regulations. The Plan was part of a multi-stage decision-making process, which included a more detailed application for the grant of development consent, which would itself be the subject of a Habitats Regulations Assessment. It was enough for the adoption of the Plan that there was sufficient information before the Council to be satisfied that the proposed mitigation could be achieved in practice. Finally, the judgment delivers a stark warning to all claimants about the importance of proper pleading. In particular, Holgate J was highly critical of “reasons” challenges which “purported to be a roving ground of challenge, enabling the Claimant to sweep up complaints not otherwise pleaded”, observing that it was “high time that these generalised or unparticularised forms of pleading should cease to be used.” Referring to the Court of Appeal’s decision in Talpada, he emphasised the need for procedural rigour in public law proceedings, observing that it was unacceptable for applications to amend to be dealt with informally in skeleton arguments, and that “it should not be assumed that it is general acceptable to leave an application to amend until a week before the hearing”. Paul Brown QC and Guy Williams appeared for the Council (with Matthew Fraser at the permission stage); John Litton QC appeared for Catesby Estates (the Interested Party). A copy of the judgment can be found here.
