Tonbridge and Malling Borough Council Threatens Judicial Review Over Inspector’s Decision to Withdraw Local Plan

by Akeem Iginla

Tonbridge and Malling has threatened to seek judicial review following the decision of Planning Inspectors to withdraw is draft Local Plan due to failure to discuss with its neighbouring Council. The draft Local Plan submitted, according to the Inspectors failed the duty to cooperate, Consequently, Tonbridge and Malling Council is threatening to commence a legal challenge over the potential examination failure of the draft local plan documents.

The Inspectors had previously found that Tonbridge and Malling Borough Council were “complicit” in failing to undertake “meaningful discussions” with Sevenoaks Council concerning how to resolve the unmet housing need.

The submitted version of the draft plan was submitted by Tonbridge and Malling Borough Council for examination in January 2019 and proposes delivering an average of 696 homes per year, in order to meet the strategic requirement of 13,920 homes by 2031.

The Inspector having found the submitted draft Local Plan document to have failed the duty to cooperate over Sevenoaks Council housing shortfalls, had recommended the draft Local Plan to be withdrawn. According to the Inspectors, there was no clear evidence that Tonbridge and Malling Council meaningfully engaged with Sevenoaks Council on how to resolve the strategic matter of the unmet housing need.

Sevenoaks Council, according to the Inspectors, had chosen not to formally request for Tonbridge and Malling Council’s help, because they were convinced that they would be unhelpful due to “constraints” and found Tonbridge and Malling Council to be “complicit” with this.

Consequently, the leader of Tonbridge and Malling Borough Council has appealed directly to the Secretary of State for Communities and Local Government to review the decision of the Inspectors. He noted that, at the time of submission of the Council’s Local Plan, the unmet housing need of Sevenoaks Council was unknown, and that the Council did not allege any failure on the part of Tonbridge and Malling Council to meet the duty to cooperate. He insisted that the submitted version of the Local P[an “fully met” the area’s housing needs.

Tonbridge and Malling Borough Council’s Leader was of the view that, “ …A failure of the submitted plan would lead, even in a best-case scenario, to a substantial delay in the adoption of any Local Plan in Tonbridge and Malling. If this were to happen, it would run directly contrary to the Government’s stated aims of ensuring 300,000 homes a year are delivered through pragmatic Local Plans”,

He argued that the plan will do nothing to address the potential unmet need of Sevenoaks, but, meant that the actual housing need in the borough of Tonbridge and Malling will not be met. He further noted that, if the Secretary of State failed to intervene, they would be left no choice other than seek legal challenge via judicial review.

Tonbridge and Malling Council Leader, in his letter to the Secretary of State, concluded that the intervention of the Secretary would give a vivid signal as to the duty to cooperate to those local authorities seeking to meet their housing needs in West Kent Housing Area, without undermining the duties of the Inspectors.

He noted that the significant principle that is at stake in this case is that it would have far reaching ramification for councils across the country as they seek to deliver on targets for new homes set by government. He opined that delaying the progress of plans such as theirs that meet those targets will not only undermines public confidence in the system but would also leave the door open for speculative developments that will be counter-productive to the Council shared objectives.

The Council leader, however, was of the hope that by drawing the attention of the Secretary of State to this case, whilst they disagree with the judgement of the Planning Inspectors, hope that common sense will prevail so that their Local Plan can be adopted for the benefits of their Borough.

However, the response from the Planning Inspectorate to the reaction of Tonbridge and Malling Borough Council, is that the Inspectors holding the independent examination had adequately considered all the evidence before reaching their initial conclusions. Hence, they had prudently looked at the issues. They acknowledged the Councils objection letter to the Inspectors concerning the duty to cooperate and promised that the Inspectors will consider and respond to their letter as part of the examination.

It is also imperative to know that Sevenoaks Council has only achieved 70% of its housing target and more likely to face severe penalty, as the NPPF presumption in favour of sustainable development, which renders their local planning policies for housing out of date and will leave them susceptible to speculative applications.

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