Examination hearing – What’s currently happening?

We’ve been waiting for news of the outcome of Stage 1 of the Plan Examination since November. On 2 June the Council posted a number of documents on their website (you can find them here). In this post, we’ll summarise the key points for you, and let you know what we think.

The Headlines

The Inspector wrote to the Council at the beginning of April, saying that she was minded to reject the plan because it did not properly meet the ‘duty to co-operate’ which is one of the key tests it must pass. (The duty requires the Council to help neighbouring districts to meet their housing targets – if help is needed, and can be provided). The Council wrote to the Secretary of State to complain about the decision, and to the Planning Inspectorate, asking for the Inspector to be removed. So far, they have got nowhere on either count, and are now considering legal action – a judicial review.

WILD’s View

We have a lot of sympathy with the Council. We do have issues with the plan as drafted, particularly with regard to the proposed developments in and around Sayers Common and Albourne, and we will continue to make our case. But this is different. Everyone agrees we need a district plan, and if it ends up being rejected, the Council will have to start all over again and have to meet an even higher housing target under a new method of calculation, at a time when their workload has rocketed as a result of the planned local government reorganisation. And in the meantime, it’s likely that housing schemes will be brought forward which do not meet the Council’s standards, even though they may pass the basic planning tests. That’s not in the interests of local people – or the prospective residents of those developments.

A Dive into Detail

So what’s really going on here? The Inspector’s reason for rejecting the plan is that she does not find sufficient evidence of active engagement with neighbouring authorities. The correspondence on the website contains a lot of argument about this. We’re not lawyers, but our take is that the Inspector is probably allowed to reject a plan on these grounds. However, her report is 20 pages long. As a rule of thumb, the flimsier an argument, the more ink you have to spill to justify it; and the fact remains that the Council has identified a large number of additional houses, which it is prepared to ‘offer’ to neighbours. The Council has offered a very sensible compromise: agree to modify the plan to deal with this specific issue, and carry on. But it’s unlikely to be accepted. Why not? The only reason we can come up with is that this is a politically motivated decision, to force more houses on Mid Sussex.

The legal action open to the Council is called a judicial review. A judge considers whether (in this case) the Inspector has broken the law, or fallen foul of the procedural rules, or acted

unreasonably in reaching her decision. We’re no experts, but the Planning Inspectorate and Housing Department seem very confident that she’s kept within the law, and the rules. The bar on ‘reasonableness’ is very high: the Council will have to show she has made a decision no reasonable person would make. But the Council’s letters show they are beginning to develop an arguable case on all of these points.

However, we do have some concerns. One of the Council’s letters sets out a deeply personal attack on the conduct of the Inspector. The letter is 34 pages long, including a 20 page appendix containing detailed examples drawn from the examination. Have a look at them. We don’t know how much time was spent in producing the appendix. Taken individually, most of the examples are insubstantial. And even taken together, they don’t add up to much. If the letter is in response to slights real or imagined on Council staff, it’s disproportionate and unprofessional – we were present at the hearings, and didn’t come away with a sense that participants were being unfairly treated. If it’s to support the case that she acted unreasonably, then it’s desperate stuff, and is unworthy of those who represent us. In our view, it would be much better to argue that the whole purpose of the examination is for the Inspector to help the Council make a sound plan, not find technical reasons to fail it; and the Inspector has been unreasonable in that regard, because there is an obvious way to remedy the issue she’s raised.

Politics – Again

Is there anything else the Council can do? It’s disappointing to us that, although the Council website said at the end of March they would update the page when correspondence from the Inspector had been received, it turns out that the report came through on 4 April but they have waited a further two months. On 15 May the Government advised them to put the letters on the website – but it took them until 2 June to do so. And we’ve heard that in going public now, they hope others will be encouraged to join them in their objections. By others, we assume they mean developers with a stake in the plan. But what about local people? We’re clear we think this is politically motivated, and so it requires a political fix. In our view, lobbying should have started in April, supported by local voices. A letter from the Leader of the Council to the Secretary of State… our local MP asking for an urgent meeting with the Housing Minister, to make some of the arguments in the Council’s formal representations… Perhaps these things have happened – we don’t know. The last two months are time wasted because, once again, officers have failed to involve and engage local people, perhaps even their own councillors. Time is running out.

Next Steps

It’s possible the Inspector/Planning Inspectorate will back down, but that seems unlikely. The Inspector will need to write and issue a formal report if the Council doesn’t pull the plan, and then the Council will have to decide whether to proceed with a judicial review – which takes an average of 6 months to complete. But if the plan is scrapped, now or after a judicial review, the whole process starts all over again. And in the meantime, we could all face inappropriate planning applications being brought forward.

We’ll do our best to keep you up to date!