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The High Court Rejects Challenge to the Bromley Local Plan

Craig Howell Williams QC
Caroline Daly

Sir Duncan Ouseley has handed down judgment in the case of Dylon 2 Ltd v London Borough of Bromley [2019] EWHC 2366 (Admin), rejecting the Claimant’s s. 113 challenge brought against the adoption of the Bromley Local Plan (BLP).

The challenge was brought on three grounds. The point of particular interest in the case relates to the Court’s findings as to the duty to give reasons on the part of a Local Plan Inspector as compared to a s. 78 appeal Inspector. Under the third ground, the Claimant argued that the Inspector had failed to comply with her duty to give reasons because she failed to deal expressly with a s. 78 appeal decision submitted to her after the hearings were closed, and which was said to be inconsistent with her conclusions regarding five-year housing land supply matters.

This ground was rejected. Sir Duncan Ouseley found that the decision of the appeal Inspector was not on an issue of critical importance to the Local Plan Inspector's conclusions on soundness, such as to require explicit distinguishing reasoning. In any event, the task of a Local Plan Inspector must be distinguished from that of a s. 78 appeal Inspector. Sir Duncan Ouseley stated that the obligation on a Local Plan Inspector to give reasons is particular to the task that he or she is required to perform. The obligation is to give reasons for recommendations in the Report. The Local Plan Inspector did not have to go through all the views expressed by the s. 78 appeal Inspector because to do so would make her task impossible as there could be “no real limit to the number of different decisions, and arguments about decisions, which she had to work her way through and around”. The Local Plan Inspector’s task is to “strike her own course dealing with the differently focussed issues she has to confront, on the basis of all the evidence and views which she hears.”

With regard to the remaining grounds, the first alleged that Policy 1 of the BLP was required, as a consequence of Policy 3.3D of the London Plan, to make policy provision in respect of the revision of the housing target figures in the London Plan in the period after 2025 on the basis that it was anticipated that this would be required by the emerging New London Plan (NLP).

In rejecting this ground, Sir Duncan Ouseley dismissed the Claimant’s interpretation of Policy 3.3D, finding that there is “simply no London Plan policy requirement for a specific local plan review to consider the NLP new figures when available”. He added that the Inspector’s judgment as to general conformity of the BLP with the London Plan was not unreasonable.

Under the second ground, the Claimant argued that Inspector had misinterpreted Policy 3.3Da of the London Plan or had ignored paragraph 47 of the 2012 NPPF in relation to boosting significantly the supply of housing and closing the gap in London between identified housing need and supply. This argument was rejected by Sir Duncan Ouseley, who found that the Inspector’s conclusions on the issue were not unreasonable and that the challenge was, at heart, a “challenge in the abstract”.

A copy of the judgment can be found here.

Craig Howell Williams QC and Caroline Daly represented the successful Defendant.