The gloves are off in Haywards Heath.
Let’s start with a 2 June 2025 press statement: Mid Sussex District Council to Challenge Secretary of State:
“Mid Sussex District Council has launched a legal challenge against the Secretary of State for Housing, Communities and Local Government after being advised by the Planning Inspectorate that it is considering failing the area’s District Plan.
After examination of the Plan in November, the Council has waited five months to hear from the Inspector.
The Inspector’s findings are that the Council has failed in its Duty to Cooperate with neighbouring Councils, simply because it did not say specifically which neighbouring Councils would benefit from the 1,000 additional houses Mid Sussex will build to help them meet their housing needs.
The Council considers this to be an extraordinary response to a technical matter that could easily be remedied another way.
Mid Sussex is the only council in West Sussex to meet its housing targets, whilst also agreeing to build extra houses to help its neighbours, Horsham and Crawley.
The Council has also delivered an unprecedented number of new houses in recent years – over 1,000 per year.
The effect of the Inspector’s findings could be to leave Mid Sussex unprotected from speculative development. This is because, if the Council followed the Inspector’s findings, it would need to start its plan making from scratch. This would take at least 30 months and over £1m. Mid Sussex is due to be dissolved, under the Government’s plans for reorganisation, in 2028.
It is for these reasons that the Council feels it must legally challenge the Inspector’s views.”
Bring on strategic planning! Bring on simpler local plan processes!
By her letter dated 4 April 2025 the inspector examining the Mid-Sussex District Plan, Louise Nurser, concluded that the council had not met the duty to co-operate – fatal to the progression of the plan.
78. In sum, MSDC is surrounded by local authorities who either have an undefined or defined quantum of unmet housing needs and these needs are significant.
79. Crawley, [Brighton and Hove] and other neighbouring authorities have long acknowledged significant and extensive unmet housing needs. Indeed, these were recognised by the previous Inspector. Moreover, other neighbouring local authorities such as Horsham have grappled with issues of water neutrality and potential impacts on their ability to meet their own and other’s needs.
80. The review of the adopted Plan envisaged under Policy DP5 was to ensure that additional sites could come forward in sufficient time to contribute to the sub-region’s unmet housing need. This process was to be planned effectively and strategically. Clearly, it would have been an easier task for the Council if one of the wider sub-regional organisations actively took the lead in addressing unmet needs. However, this was not the case during the preparation of the plan.
81. Nonetheless, your officers will have been aware of this considerable unmet need and the Council’s legal obligations, well before the significant milestones in the preparation of the Plan. Consequently, in practical terms the lack of active engagement by the two sub-regional groups has meant that in practice, MSDC needed to co-operate with its neighbours directly to ensure that it addressed its legal obligations in relation to the DtC. These obligations are not discretionary.
82. The Council has an obligation to maximise the effectiveness of plan preparation in a wider sub region where there are significant unmet needs. It has not provided the evidence to demonstrate that it has engaged constructively, in an active and on-going way to do so.
83. In considering this obligation, I am aware that Mid Sussex has its own constraints, such as the North Downs National Landscape, the setting of the South Downs National Park and the limitations to development relating to the Ashdown Forest SPA/SAC and that the water neutrality issue affects a relatively small strip of land on the western edge of Mid Sussex. Nevertheless, the presence of constraints does not obviate the necessity for MSDC to explore the possibilities of doing more to help address the unmet needs of the wider sub- region. The failure here is that the Council has not adequately considered the requests of its neighbours – namely Crawley, Horsham and Brighton and Hove, in a constructive, active and ongoing way. The Council has, consequently, not maximised the effectiveness of plan preparation
This might be seen as harsh given that, for instance, the adjoining authorities had not in fact objected to the position taken by Mid-Sussex.
And, incidentally, bring on a solution to that water neutrality issue! See my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – it’s been almost four years!!
MSDC sent a letter of complaint to the Planning Inspectorate dated 17 April 2025 alleging that decisions by the inspector had been fettered by pre-determined views; alleging that she had not behaved at the examination with courtesy, patience and understanding (e.g. “the Inspector frequently cut-off participants mid-sentence, displayed negative body language when listening to responses, and at one point admitted she had “switched off” whilst the Council’s Counsel was responding to a question. The Inspector made remarks such as being tetchy because she “needs some food” and that she is “not a morning person”” – there is in fact a 22 page appendix to the letter setting out extracts from the inspector’s interactions at the examination, cross-referenced to a YouTube video), and alleging that she had delayed unreasonably in reaching a decision about the plan following the conclusion of the stage 1 hearing sessions. At the same time, MSDC sent a pre-action protocol letter to the Government Legal Department (“The purpose of this letter is to seek to avoid the unnecessary expense and delay to which such action would give rise by asking the Secretary of State (a) to agree that the Inspector’s reasoning is legally erroneous, (b) to remove her from the role of examining the Plan and (c) to appoint a new Inspector to re-start the examination of the Plan in her stead.”). The letter included a request for all communications between the inspector/PINS and the Secretary of State/MHCLG in relation to drafts of the inspector’s 4 April 2025 letter.
The Planning Inspectorate (via its local plans professional lead Simon Berkeley) and the Government Legal Department separately responded to the correspondence on 15 May 2025 but what is perhaps most interesting for those of us who like to see what goes on behind the curtain in these situations is to see the detailed file of correspondence that was released in response to the information request: have a look at the scrutiny given to some draft inspectors’ letters and the editing process that took place (which, subject of additional complaint by MSDC, includes input from Simon Berkeley).
MSDC has now separately responded to the Government Legal Department and to the Planning Inspectorate in letters dated 2 June 2025.
From the letter to the Government Legal Department:
“For the reasons set out above, the Council remains of the view that the Inspector’s reasoning is legally flawed, and that if it requests her to issue a final report which (as she has said is likely to be the case) is similarly reasoned, it would have good grounds for seeking judicial review. However, it is possible to avoid that, and to the keep the Plan “on track” so as to help the Government meet its commitments. Consequently, in order to inform its decision on how it should respond to the Inspector’s letter, the Council seeks your response within 14 days.”
From the letter to Simon Berkeley at the Planning Inspectorate:
“Given the multiple concerns the Council has regarding how our complaint has been addressed, we request that it is provided to an alternative, suitably qualified individual within the Planning Inspectorate, who should be tasked with undertaking a full, independent review of our original complaint.”
“The correspondence provided to us, extracts of which is included at Appendix A, demonstrates that you took a leading role in the quality assurance of the Inspector’s letter. You provided over 40 comments on a draft of the letter as well as making substantial textual amendments. In addition, you supported the Inspector in the conclusions that she was drawing; namely that the Council had failed the DtC. In your email dated 17 February 2025 to the Inspector you say: “I think you’re right to follow the path you have – from what you’ve said, it does appear to me that they have failed the DtC.” and that “it’s [the letter] all about remaining as safe as possible from challenge”.
Given your involvement in the quality assurance of the Inspector’s letter, the Council is at a loss to understand how it could be deemed appropriate for you to respond to our complaint.”
“…the language and tone used by the Inspector did not, in our opinion, create ease at the hearings or bring levity to the proceedings. Indeed, her behaviour had the contrary impact. Following the comments around who should read the Council’s opening statement and the Inspector’s reference in her opening comments to the need for ‘legal eagles’ to remember that they were “mere mortals”, our own Counsel, and Counsel instructed by other parties were reluctant to take the lead making representations on behalf of their clients because of the Inspector’s evident hostility to barristers.”
[NB (and, gulp, this is really going to kick things off) I endorse that “mere mortals” comment and indeed the recommendation in the Strategic Planning Group’s May 2025 report on planning positively for the future, that for examination processes for the new spatial development plans “Whilst from time-to-time participants may choose to have legal representation, the clear expectation should be that those attending will be giving their views directly and not via advocates.”]
Not to personalise this post too much but others in Sussex may remember the same inspector concluding in 2020 that the Wealden local plan be withdrawn due to failure of the duty to cooperate, together with other soundness issues. The authority is only back at regulation 18 draft stage with its revised plan.
Is PINS or the Government Legal Department going to yield in response to all of this? We shall see. Of course, in local plan making everything connects. Adjoining authority Horsham District Council, with its unmet housing needs partly down to its long-standing water neutrality issue, has been the recipient of a preliminary findings letter dated 22 April 2025 from its local plan inspector Luke Fleming, also concluding that there had been a failure of the duty to cooperate as well as issue over soundness:
“In my assessment, at the very least, for engagement to be constructive, active and ongoing between February 2024 and July 2024 on the strategic matters of housing and water supply, the ability to deliver any water neutral development without needing to rely on [the Sussex North Offsetting Water Scheme] or a strategic resolution to water neutrality should have been considered in some detail by all the relevant [North West Sussex Housing Market Area] local authorities before the Plan was submitted.”
“93. The Council’s affected by water neutrality should be commended for their efforts in trying to develop a local authority led water supply offsetting scheme. However, this has clearly proved more challenging and resource demanding than originally anticipated.
94. It is also my view, that the supply of water as a constraint to much needed new homes for people to live in the area, should have been addressed by bodies other than the Council long before now, especially given CC08 was issued in 2021. Because, it hasn’t, the circumstances upon which the Council has had to prepare the Plan have been extremely challenging, with significant Council time and resources needing to be directed at assessing and understanding issues associated with the supply of water to new homes. This is not usually an issue that local plan’s need to be concerned with in any extensive detail given the responsibilities of statutory water undertakers.
95. However, even so, under the circumstances I have outlined above, I can only recommend that the Council withdraw the Plan under S22 of the PCPA and focus its resources on rapidly preparing a new Local Plan. In doing so the Council could utilise much of the good and comprehensive work already undertaken before components of the evidence base become out of date.”
[Not a letter that appears to have been subject to quality assurance, if the misuse of apostrophes in paragraphs 93 and 94 is anything to go by].
Horsham District Council has responded, complaining that “it has been treated unfairly with regards [sic] the approach taken to examining its Local Plan due to delays, poor communication and lack of transparency”, alongside publishing an inevitable press statement, Council rejects Inspector’s flawed assessment of Local Plan (22 April 2025).
Look, I’m a mere mortal, but whatever the rights and wrongs of these specific situations, partly exacerbated by continued failures to resolve the water neutrality issue in northern Sussex: can anyone defend such a slow, uncertain, unstrategic and bureaucratic system?
Simon Ricketts, 7 June 2025
Personal views, et cetera
SIMONICITY 