Surrey council threatens to take government to court in deepening local plan row

A Surrey council has threatened to take the government to court over its decision to intervene without warning when the council was considering withdrawing its draft local plan.

Housing minister Rachel Maclean wrote to the council on September 14 in advance of a council meeting to use her powers to block the council from considering a motion to withdraw its plan from examination.

However, Spelthorne council leader Joanne Sexton shortly after branded the move “unreasonable and unacceptable” given what she described as “chaos and mixed messaging” in government over housing policy, and now the council has said it is considering legal action.

In a letter to Maclean, Sexton has said that it has received legal advice over the intervention from a KC, William Upton, and is now “actively considering the option of a Judicial Review”.

Sexton said in the letter that the council will take the decision once it has received a response from the department to its letter, which it says is “the first opportunity that the Council has had to set out its views”.

Following Maclean’s last-minute intervention, Spelthorne decided to pause work on its draft local plan to allow its newly-elected members to “fully” understand the plan’s proposals.

The council argues that Maclean’s intervention was unfair, under guidance for intervention set out in 2017, because the minister didn’t give the borough any opportunity to argue that there were “exceptional circumstances” mitigating against intervention, prior to Maclean stepping in.

The letter says this “failure of due process” was “incredibly disappointing and frustrating”, stating: “It is clear that in line with the Government’s own intervention criteria, the Department should have given the Council the opportunity to put forward any exceptional circumstances before action was taken.”

It also states that by the criteria under which Maclean justified her intervention – failure of progress in plan-making, lack of up-to-date policies, higher housing pressure, and intervention having a greater impact – Spelthorne can argue that other authorities are in far worse positions, and therefore that intervention in Spelthorne alone is not justifiable.

Joanne Sexton, an independent, was elected leader of Spelthorne this summer after the council remained in No Overall Control in the May local elections, with the Conservatives suffering the loss of 11 councillors. The local Liberal Democrats, which are working with Sexton, have accused Maclean of “cancelling democracy” in the borough.

The letter comes after the housing minster underlined her determination to take on local authorities that have failed to draw up local plans at last month’s Conservative Party conference. Maclean told a fringe event that increasing the number of local plans was critical, and that “We do have intervening powers,” adding: “I’ve intervened only just recently, and we absolutely will continue to do that.”

The Home Builders Federation estimates that progress on around 60 local plans have been held up or withdrawn in the last 18 months as the government started backtracking on the plans laid out in the 2020 Planning for the Future white paper. Proposals to reform national planning policy set out in December last year which were promised to be introduced in spring have been delayed until later this autumn.

The Department for Levelling Up, Housing and Communities believes withdrawing the plan would have extended what it considers to be an already unacceptable period in which the Council has had no up-to-date local plan in place. The department said it will respond to the authority’s letter in due course.