Factual and Procedural Background
This appeal arises from a decision of a deputy High Court Judge in the Administrative Court dated 20 May 2005 concerning the adoption by the respondent Borough Council ("SBC") of the Stevenage District Plan Second Review 1991-2011 ("the SLP") on 8 December 2004. The appellants, a consortium interested in residential development west of the A1(M) at Stevenage, sought judicial review under section 287 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the adoption of the SLP on two grounds: (1) general conformity with the structure plan and (2) the green belt ground. The judge dismissed the claim on the general conformity ground but allowed it on the green belt ground. This appeal concerns only the general conformity ground. Permission to appeal was granted on 11 July 2005.
The appellants had applied to SBC for planning permission for residential development on land partly within Stevenage Borough and partly within North Hertfordshire District, all within Hertfordshire County. The applications were called in by the First Secretary of State and an inquiry was held. The Secretary of State’s decision on these applications was pending at the time of the appeal, which was expedited to allow the Secretary of State to consider the court’s view on the general conformity issue beforehand.
The case concerns the relationship between the Hertfordshire County Structure Plan and the Stevenage Local Plan. The statutory framework requires local plans to be in general conformity with structure plans. The SLP was challenged on the basis that Policy H2, relating to the allocation of land for approximately 1,000 dwellings west of the A1(M), did not conform generally with the structure plan policies 8 and 9 adopted in April 1998.
Legal Issues Presented
- What is the correct statutory construction of the term "general conformity" as used in the 1990 Act in relation to the requirement that a local plan be in general conformity with the structure plan?
- Whether the Stevenage Local Plan, as adopted with Policy H2 and its qualifications, is in general conformity with the Hertfordshire Structure Plan policies 8 and 9.
- What is the appropriate standard of judicial review under section 287 of the 1990 Act for assessing conformity between local and structure plans?
Arguments of the Parties
Appellants' Arguments
- Policy H2 of the Stevenage Local Plan is not in general conformity with the Hertfordshire Structure Plan because it fails to give effect to Policy 9’s requirement that 1,000 dwellings be made available by 2011.
- The qualification in Policy H2 that the land is "safeguarded" pending reconsideration and acceptance of its strategic justification effectively defers the development indefinitely, contrary to the structure plan’s strategic allocation.
- The local plan’s conditional approach frustrates the implementation of the structure plan’s housing strategy, thus breaching the statutory requirement of general conformity.
Respondent's Arguments
- The local plan inspector’s recommendation, accepted by SBC, properly balanced the need for conformity with the structure plan against the uncertainties arising from changes in national policy and the structure plan review process.
- The term "general conformity" allows flexibility, including qualifications reflecting strategic uncertainties, without pre-judging the outcome of any review.
- It was legitimate for SBC to include the qualification in Policy H2 to reflect the pending review and uncertainty over the strategic justification for development.
- The local plan as adopted remains in general conformity because it allocates land for 1,000 dwellings and does not rule out development before 2011.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 |
Establishes the Wednesbury principle of judicial review, limiting court intervention to irrationality or unreasonableness in public law decisions. |
The court applied Wednesbury review to the planning judgment on general conformity, limiting its role to supervisory review rather than re-taking merits decisions. |
| J S Bloor Ltd v Swindon BC [2002] PLCR 404 |
Interprets the ambit of "general policies" in structure plans and the degree of detail permissible. |
Used to illustrate that structure plans may contain detailed policies and that "general conformity" requires a balanced approach respecting the nature of the policies. |
| Ex parte Woods |
Addresses the court’s role in statutory interpretation of planning policy language. |
Referenced to support that interpretation of planning terms is for the court, but application of judgment is for the planning authority subject to Wednesbury review. |
| Sainsbury's Supermarkets Ltd v Wolverhampton CC [2005] EWCA Civ 520 |
Reinforces principles on statutory interpretation and judicial review in planning contexts. |
Referred to in support of the approach to interpreting planning policies and the court’s supervisory role. |
Court's Reasoning and Analysis
The court first clarified that the term "general conformity" is a question of statutory construction for the court. The term is not defined in legislation, so its ordinary meaning must be applied in the context of planning control’s practicalities, including long lead times and evolving policy needs. The court concluded that "general conformity" requires a balanced, flexible approach allowing room for local plans to reflect changing circumstances without subverting the structure plan’s strategic policies.
The court recognized that the question whether a local plan is in general conformity with a structure plan involves planning judgment and is therefore subject to supervisory judicial review on Wednesbury principles, rather than de novo merits assessment. This is because the issue concerns the relationship between two sets of planning policies adopted in the public interest, not a dispute between citizen and state rights.
Applying these principles, the court examined whether the qualification in Policy H2 of the SLP, which safeguards the allocated land from development pending reconsideration of its strategic justification, was consistent with the structure plan. The court found that while it is legitimate for a local plan to include qualifications reflecting strategic uncertainties, such qualifications must not pre-judge the outcome of any review or indefinitely defer implementation of the structure plan’s policies.
The court identified a conflict between the structure plan’s requirement that 1,000 dwellings be provided by 2011 and the local plan’s conditional approach, which effectively deferred availability indefinitely due to the abandonment of the structure plan review process by the county council. This indefinite deferral was found to be contrary to the statutory requirement of general conformity.
Accordingly, the court held that the local plan’s qualified Policy H2 failed to give effect to the strategic housing allocation in the structure plan and was therefore not in general conformity. The decision to adopt the local plan with this qualification was irrational and perverse under the Wednesbury standard.
Holding and Implications
ALLOWING THE APPEAL
The court held that the Stevenage Local Plan, as adopted with the qualified Policy H2, was not in general conformity with the Hertfordshire Structure Plan and was therefore unlawful under sections 31(4) and 43(3) of the 1990 Act. The qualification imposed by Policy H2 effectively deferred the implementation of the structure plan’s strategic housing allocation indefinitely, which is inconsistent with the statutory requirement.
The direct consequence is that the relevant parts of the local plan are liable to be quashed or require revision to remove the unlawful qualification and to give proper effect to the structure plan policies. The decision underscores the limited but crucial supervisory role of the courts in reviewing planning conformity under section 287, emphasizing that local authorities must respect strategic policies without indefinite deferral or conditional subversion.
No new precedent was established beyond the application of existing principles of statutory construction and judicial review to the specific facts of this case.