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High Court rejects challenge to Chorley CIL charging schedule

Out-Law News | 24 Apr 2014 | 4:11 pm | 2 min. read

An examiner's approach when recommending that Chorley Borough Council's community infrastructure levy (CIL) charging schedule should be adopted was neither irrational nor unlawful, a High Court judge has ruled.

Developer Fox Strategic Land had launched judicial review proceedings to challenge the examination process leading to adoption of the charging schedule in July last year. The charging schedule was prepared and examined jointly with Preston City Council and South Ribble Borough Council.

The judge rejected the developer's claim that the examiner had been irrational in his approach to dealing with the councils' evidence on likely residential development land values by failing to see shortcomings in that evidence.

He said that the examiner had been entitled to conclude that the councils had taken an "appropriately measured" approach by striking the balance between the need to fund new infrastructure and the likely effects on CIL on the viability of development.

"I do not see any how any of the examiner's conclusions challenged can be said to be irrational. They were both reasonable and sufficiently reasoned, and were at least adequate for the purposes of the assessment he had to make," the judge said.

The judge noted that in judicial review proceedings, the court cannot interfere with the examiner's judgement on matters of valuation or planning merit. "A challenge based on an allegation of irrationality in an examiner's conclusions is particularly ambitious," he added.

The judge rejected a claim that the examiner had committed an error in law when concluding that the councils' assumptions on dwelling size and density were based on "appropriate, available evidence". He said that the examiner's conclusion that the councils approach was "appropriately measured" was "unimpeachable".

"The examiner had to exercise his judgment. He did not have to decide whether the councils' assumptions on the size of the dwellings and the density of development were demonstrably correct," the judge said.

The developer also claimed that the examiner should have required the councils to justify the residential CIL charge beyond January 2016. It said that the councils had failed to allow for the potential effects of a development plan policy coming into effect on that date which will require new dwellings to comply with Level 6 of the Sustainable Homes Code.

However the judge said there was "no need" for the examiner to ask the councils for evidence to show that the residential CIL rate would not prejudice the viability of housing development after January 2016.

"The examiner did not fail to address the argument that the CIL charge would automatically become more difficult for housing development to bear once the cost of meeting the heightened requirement comes into force," the judge said. He said that the examiner's conclusions on the issue were "reasonable and consistent" with both statutory requirements and government guidance.

“We are delighted this claim has been dismissed by the court, it means that we can now be confident in moving forward with our CIL schedule and ensures we have a clear policy for future developers who wish to submit planning applications,” said Chorley Council chief executive Gary Hall according to local reports.

“We feel we were right to defend the challenge because this schedule had already been subjected to a testing public inquiry and we firmly believed the issues raised in the challenge were properly considered by the independent inspector at that inquiry,” Hall said.