England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 January 2013

HH Judge Anthony Thornton QC:

A. Introduction

1. This claim for judicial review is brought by Lanner Parish Council ("LPC") against the decision of West Sub-Area Planning Committee ("the Committee") of The Cornwall Council dated 7 November 2011 granting Coastline Housing Limited ("Coastline") planning permission for the erection of 25 affordable dwellings on an exception site in Lanner which is located 2 miles south east of Redruth in West Cornwall. The claim is brought with the permission of Collins J granted at a renewed application on 6 July 2012. The claim seeks to quash the decision on two separate grounds, namely that it is erroneous in law in being based on, or taking into account, erroneous conclusions as to the terms of the relevant affordable housing policy and relying upon a summary of data that was neither full, sufficient nor correct as to the extent of housing need for affordable housing in Lanner.

B. Factual Background

2. Lanner is one of the largest villages in Cornwall and, with its neighbouring villages of St Day and Carharrack, is one of the three villages known locally as the Mining Villages given their historic association with local copper and tin mines. In 2010, its estimated population was about 2,737 with 1,227 households and, although it had 98 social housing units in 2012, no social rented housing had been built there for about 20 years. In that period, it had lost some of its existing social housing which was sold under the right to buy legislation. Cornwall in general and its north western coast in particular has been consistently short of social housing with affordable rents given the relatively low wages and the high cost of houses to buy and attempts to encourage its supply have been a feature of affordable housing policy and in structure, development and local planning within the County.
3. Lanner formed part of the Kerrier District before it was done away with in local government reorganisation in 2009. Before its demise, the old Kerrier District Council had undertaken much work in drafting a new district local plan in the period 2002 – 2004 at which point work on the local plan stopped and it would appear that none of the relevant policies in the then existing draft were carried forward or adopted by the Secretary of State pending completion of the Development Plan framework. By the time that preparatory work stopped, the draft plan had been on deposit twice and has been subject to public consultation in 2002 followed by changes being made to the then existing draft. However, the anticipated local plan inquiry never materialised and the local plan was never formally adopted. Prior to 2009, when the six county district authorities were replaced by Cornwall Council, Kerrier District Council had used the draft as a reference point when considering planning applications involving affordable housing but by 2010, it was generally considered to be out of date and the affordable housing policy that it contained had not been followed on a number of occasions by both the old district council and the new unitary authority.
4. The draft policy in issue relates to the provision of affordable housing on rural exception sites to meet the needs of the local community. The site in question is located just outside the development boundary of Lanner on a greenfield site. The draft policy defined the exception to the policy of restraining development outside development boundaries in this way:

"The basis of the exceptions policy is one of permitting very limited exceptions to established policies of restraint on development in the countryside subject to strict criteria and other controls. It should meet the needs of an established rural community in a particular location on the basis of a local need identified by an up-to-date survey and an assessment of need. Provision should be related to villages with an appropriate level of community facilities and services, including public transport, for the type and scale of housing development proposed. Where there is a choice of villages in a Parish, those with the better range of services and facilities would be the preferred location."

The relevant draft policy was contained in policy H20 which provided that the development of affordable housing on small exception sites in rural areas would be permitted where it was for no more than about 12 dwellings in the larger villages, such as Lanner, depending on the evidence of the needs of the local community for the survey period.

5. Coastline is an independent charitable housing association that owns almost 4,000 homes in Cornwall. In 2008, it identified a potentially suitable site for affordable housing just outside Lanner's development area. It undertook a consultation event in Lanner in September 2008 followed by a housing needs survey across the entire village which identified 37 households in housing need, the majority of which stated that they would require rented accommodation due to their income levels. This information was used with its other detailed knowledge of local affordable housing need to prepare and submit an application for a 25 affordable housing development on that site which was submitted to Cornwall Council on 3 August 2009. This application was considered by the Committee on 1 February 2011 in conjunction with a report from the case officer recommending its acceptance. The application was approved subject to Coastline entering into a section 106 agreement to secure affordable housing. This agreement was signed on 4 November 2011 and permission was granted on 7 November 2011. Coastline signed a build contract dated 30 September 2011 to build the 25 homes that, by then, it was confident it would obtain permission for having previously obtained confirmation of capital funding for the scheme from the Homes and Communities Agency under that Agency's 2011 – 2015 Programme.
6. LPC has never opposed the principle of an affordable housing development on the application site in question. However, it has always been of the view that that development should not exceed about 12 affordable housing units. It is concerned to limit any exception site development to the size permitted by a reasonable application of the 2004 draft policy which it considers is still applicable and is reinforced in this view by what it regards as the evidence of local need which it suggests points to a size of development that falls within that policy.
7. It contends that the Committee was wrongly advised and wrongly advised itself that the policy permitted it to grant permission for a development which was at least double the maximum number of units permitted by the policy so that it erred in law in misconstruing the relevant policy that it had to take into account. LPC also challenges the decision on the basis that the Committee was not provided with full, sufficient and correct data with which to decide whether to permit such a large exceptions site development and, moreover, was not informed as it should have been of the limitations of the data that it was given. These are challenges which, if made good, would entitle it to an order quashing the Committee's decision with an added requirement that that decision should be retaken on the correct basis both as to the construction of the policy and as to the correct data and the correct interpretation of that data. It is convenient to address each of these grounds of challenge separately.

C. Issue 1 – Policy H20

(1) Affordable housing policies

8. It is necessary to consider the Committee's decision in its context. The starting point is the Cornwall Structure Plan 2004. That provided in its policy 9 a Mix and Affordability of Housing policy which identified the issue of the provision of affordable housing as being critical in Cornwall due to low average earnings especially when compared to house prices and, in wealthier areas, the problem was made worse by the influence on the housing market of second home buyers and the wealthier incomers. The provision of affordable housing was best done by ensuring that, each year, there was a regular flow of a suitable mix of properties onto the market. This need was to be provided for by a mixture of the provision of affordable housing as part of a larger development and the exceptions approach in villages. Targets should be set in local development documents based on specific assessments of needs for affordable housing^[1].
9. The revised deposit draft of the Kerrier Local Plan 2004 provided a specific rural sites exceptions sites policy in policy H20. This provided that affordable housing development would be permitted where 8 cumulative conditions were applicable. The conditions relevant to this case were:

"(ii) There is evidence of a local need that would not otherwise be met for affordable housing to serve the village and parish which would be met by the number and size of dwellings proposed … depending upon the evidence of the needs of the local community; …

(iii) it is for no more than about 12 dwellings in the larger villages and about 6 dwellings in the smaller villages, depending on the needs of the local community for the survey period; …

(viii) The occupation should be controlled (and, where it is for rent preferably managed by a registered social landlord or housing charity) to ensure that the benefits of affordable housing will be enjoyed by all subsequent, as well as the initial, occupiers and that element of affordability is maintained in perpetuity. A planning obligation will be sought to ensure that the initial, and subsequent, occupancy of the dwellings is restricted in perpetuity to persons in housing need who have been residents of the parish … for at least 5 years or have a local connection there either by birth, upbringing, current employment or previous residence. In the event of local need subsequently falling so that the accommodation cannot be resold or re-let within the parish, an extension of the qualification area for local need would be accepted. This would be firstly to the adjoining parishes and secondly, if justifiable by the decline in the level of identified need, to Kerrier District as a whole."

10. The draft policy H20 was honoured with growing infrequency in the years after 2004. The Cornwall Council's Development Manager Group Leader's evidence was that between 2006 and 2010, planning permission had been granted on at least 7 occasions in a village or parish within the former Kerrier District for significantly larger affordable housing schemes than 12 houses based on evidence of local need. Five of these were for between 16 and 19 dwellings, one was for 24 and one for 30. On each occasion, the entire development was occupied very quickly after it had been completed by qualifying tenants. Two of these had occurred as a result of a successful appeal.
11. In November 2006, the Department for Communities and Local Government published the first edition of Planning Policy Statement 3 ("PPS3"). Further editions were published in January and June 2010 and June 2011. This set out the Government's national policies on aspects of planning, PPS3 being concerned with the delivery of its housing objectives. In relation to the provision of affordable housing, PPS3 stated that its commitment to provide high quality housing for those unable to access market housing should be addressed by the provision of an overall target for the amount of affordable housing to be provided in each local development document. It encouraged the development of rural exception site policies to enable small sites to be used specifically for affordable housing in small rural communities and it suggested that the indicative minimum site size threshold was 15 dwellings although lower minimum thresholds could be set where this was viable and practicable including in rural areas.
12. In December 2009, The Cornwall Council produced its Cornwall Housing Strategy 2009 – 2012 policy. This strategy set out four priorities. One of these was to maximise the delivery of new affordable housing. In its version 2.2 dated May 2010, the section of this policy dealing with the delivery of affordable housing stated that Cornwall was presented with significant challenges to delivering affordable housing due to high housing costs, building from a low base, low turnover, lower than average local incomes and a lack of resources for affordable housing delivery. As a result, there was a significant increase in the assessed need for new affordable housing which was now 2,324 per annum representing 52% of the overall need for the assessed requirement for all new dwellings.
13. In September 2010, Cornwall Council produced an options draft of an update of the 2004 draft local plan entitled Affordable Housing Development Plan. In the forward, the holder of its Portfolio for Housing and Planning, Councillor Mark Kaczmarek, who submitted a witness statement for this judicial review hearing, stated that the former district local plans were not fit for purpose. He also stated in the introduction that, in almost all cases, they were outdated and fundamentally failed to reflect modern planning policy principles or to generate the level and type of affordable housing provision to meet this demand. The Plan recognised the urgent need for affordable housing throughout Cornwall. The options for rural exception sites outside villages did not include a defined maximum number of affordable housing on such sites but focused primarily on clearly identified need for affordable housing in the specific local community in issue.
14. The relevance of the draft policy contained in H20 to subsequent applications for planning permission for affordable housing on rural exception sites was considered in two appeal decisions of inspectors appointed by the Secretary of State. In chronological order, these were:

(1) A decision dated 7 January 2009 which related to a site for which permission for 25 affordable housing was sought on appeal adjacent to the village of Gweek following a refusal by Kerrier District Council. The inspector noted that Kerrier District Council, which had refused the application in February 2008 a year before it ceased to exist, used the plan for development control purposes and he therefore attached some weight to policy H20. However, he considered that its restriction of developments on smaller village sites such as the Gweek site to 6 dwellings to be unduly restrictive and that the appeal site was, in principle, able to accommodate 25 dwellings. He refused the appeal however on the overriding policy basis provided for in PPS3 that the aim of exception sites was to provide affordable housing for those with a local connection and that a justifiable and identified local need for 25 dwellings had not been made out.

(2) In a decision dated 15 December 2011, an inspector allowed an appeal for a three-flat conversion and, in doing so, gave little weight to the policies of the 2004 draft local plan because it was prepared in 2002 since when there had been significant changes in national policy guidance and, moreover, it had never been formally adopted.

15. In his witness statement that was dated 7 September 2012, Councillor Kaczmarek stated:

"The draft development plan is not referred to anymore. It has been replaced by national policy. The draft plan was clearly out of date when the permission was granted."

(2) The Committee's decision

16. Three sources of data were placed before the Committee as part of the material it considered when deciding to approve Coastline's application. These were summarised in the case officer's report. In the officer's report that was before the Committee, the case officer concerned with this application set out all the relevant considerations in meticulous detail. The relevant parts of this report read as follows:

"Summary:

The main issues for consideration in this submission are; (i) principle of development; …

Principle of development

The proposal constitutes residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposes 100% affordable housing and is considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. The Affordable Housing Officer has confirmed that the Cornwall Homechoice Register has 51 applicants with a local connection to Lanner Parish. The development accords with policies 8, 9 and 10 of the Cornwall Structure Plan, policies H14 and H20 of the Draft Kerrier District Local Plan 2004 and Government advice contained within Planning Policy Statement 3. …

Consultations:

17. Lanner Parish Council

The Parish Council objects to this application for the following reasons:

This application is underpinned by a housing needs survey carried out by Coastline. The Parish Council criticised this survey as being without value. Its methodology was flawed and it failed adequately to identify those claiming to be in need of social housing or how they met the eligibility criteria. Coastline refused the Parish Council's offer of participation in a more meaningful survey. Without an accurate survey it is feared that many of the proposed units may go to people currently not resident in the parish. Based on feedback from parishioners, the Parish Council believes the actual need for local needs housing is less than stated.

Any local needs housing should reflect the particular needs of those requiring it. The mix of units proposed in this application would provide too few one bedroom units which would, in the opinion of the Parish Council, discriminate against single person/elderly units which are most likely area of need in the parish. …

There is no evidence that this application has the support of the local community. …

The Parish Council has no desire to obstruct any proposal which will resolve genuine needs for affordable homes by parishioners. However, for the reasons stated above, the Parish Council is unable to support this application which may cause more problems than are solved.

18 members of the public attended the Parish Council planning meeting and were opposed to the application. …

Affordable Housing

The scheme is for 25 Affordable dwellings on a rural exceptions site. The applicant has viability tested and proposed a range of delivery options to allow for the potential to secure subsidy should it be available. All options broadly meet identified need and will provide 100% Affordable Housing. …

Housing Need

The Cornwall Homechoice Register has 51 applicants with a local connection to Lanner Parish. …

Representations:

28 In response to publicity, 4 petitions have been received, 1 with 7 signatures, 1 with 20 signatures and 1 with 4 signatures. In addition 15 letters from 12 people commenting on the proposal have been received.

Principle of development

29 The proposal constitutes residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposes 100% affordable housing and can therefore be considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. Lanner is a larger village and policy H20 normally allows for about 12 affordable dwellings. However the additional 13 dwellings are considered justified with regard to the current needs of the community as verified by the Affordable Housing Officer. Policies 8 and 9 of the Cornwall Structure Plan 2004 also support the provision of affordable housing that meets the needs of the whole community. Policy 10 states that residential development should be well integrated with existing development.

30 Furthermore, it is important to consider advice contained within Planning Policy Statement 3 – Housing which seeks to achieve a wide choice of high quality, affordable housing to address the requirements of the community in all areas, both urban and rural.

31 In conclusion, the site is immediately adjoining a main village settlement boundary, the Affordable Housing Officer supports the application in terms of need, type, tenure and size, and the occupancy of the dwellings can be secured for local people in housing need in perpetuity by the imposition of a Section 106 Planning Obligation.

Need for Affordable Housing

32 Coastline Housing carried out a consultation event in September 2008 to assess the needs of the entire village and to identify potential development sites. After this event Coastline undertook a housing needs survey across the entire village. The results of this survey indicated that 37 households were in housing need and the majority given their income levels would require rented accommodation.

33 Lanner Parish Council has also undertaken a Local Needs Housing Survey in May 2010 with a questionnaire delivered to each of the 1181 households within the parish. 252 questionnaires were returned of which 30 wished to be considered for local needs housing. Of these 30, 10 were judged by the Parish Council to meet local needs housing criteria.

34 The Affordable Housing Officer has confirmed that the Cornwall Homechoice Register has 51 applicants with a local connection to Lanner parish.

35 It is considered that there is a need for the provision of affordable housing in the Parish and the development will therefore accord with policies 8, 9 and 10 of the Cornwall Structure Plan, policies H14 and H20 of the Draft Kerrier District Local Plan 2004 and Government advice contained within Planning Policy Statement 3."

17. Councillor Ashley Wood, the Chairman of LPC, addressed the Committee and the points he raised that are relevant to this application, which are taken from his speaking note that he prepared for the meeting were as follows:

"Since our original comments on this application in September 2009 much has changed. We are even more strongly opposed to this development and for the following reasons:

(1) The Lanner Local Needs Housing Survey of 2010, carried out in full cooperation with the Affordable housing Officer in its planning, distribution and analysis, showed a need for 11 units in the parish. We believe our survey is the only one capable of standing up to full scrutiny as to whether all local needs criteria are met. Coastline's survey and information supplied by the Housing Needs Manager from the Homechoice Register have no value in this respect.

(2) Our housing survey, public meetings and results of our Parish Plan questionnaire show an overwhelming desire for affordable housing in Lanner to be for local needs only and that these be in small developments well integrated into the fabric of the community. …"

18. The minutes of the meeting summarise the oral contributions made by the three speakers, including Councillor Wood, who objected to the application and the three speakers who spoke in favour of it. The supporting speakers included a contribution from Councillor Mark Kaczmarek which he made in his capacity as the Cornwall Council member for Lanner. The minutes summarise this contribution and that summary includes this passage that is relevant to this application:

"Mark Kaczmarek, Local Member, attended the meeting, was permitted to speak and made the following comments: …

(iii) There had been less than a 25% response to the Parish Council survey regarding local housing need and there were a number of young families, and people of retirement age on the Homechoice Register with one couple in particular being in desperate need. He commented that he did not feel that the Parish Council had been proactive in supporting local people. …

(vii) There were 17 qualified applicants for affordable housing living in Lanner, ten past residents, one working in Lanner, and 15 with very close family connections.

(viii) He advised that the only reason that, as Local Member, he had not allowed the application to be approved under delegated powers, was that he had a family member in the Homechoice Register."

The minutes continued:

"A full and detailed debate ensued, the main points of which were noted as follows:

(i) In response to a question regarding local housing need, the Affordable Housing Team Leader – West Cornwall Planning Delivery Team advised that current statistics from the Homechoice Register indicated that there were 53 people registered with a verified local connection with Lanner, 29 of which were in the highest bands of housing need.

(ii) In response to concerns regarding the viability of the 25 new homes in Lanner the Local Member advised that he believed that the community cohesion would be safeguarded as most of the prospective occupants were already living in Lanner and that similar schemes had been built in two neighbouring villages of half the size of Lanner which were fully integrated into the village. …".

The minutes concluded with a copy of the resolution that was passed by the Committee approving the application by a vote of 9-4 with one abstention:

"RESOLVED that planning permission be granted in respect of Application No. W2/PA09/01402/F (Coastline Housing Association: Tresavean Estate, Lanner, Redruth) subject to the conditions set out in the report and to the applicants entering into a Section 106 Obligation to secure affordable housing.

The reasons given by the proposer for wishing to approve the application were that the proposal constituted residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposed 100% affordable housing and could therefore be considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. The Affordable Housing Officer had confirmed that the Cornwall Homechoice Register had 51 applicants with a local connection to Lanner parish. The developments accorded with policies 8 ,9 and 10 of the Cornwall Structure Plan 2004, policies H14 and H20 of the Draft Kerrier District Local Plan 2004 and Government advice contained within Planning Policy Statement 3."

(3) Parties' submissions

19. Witness statement evidence. The submissions relied on the relevant parts of the witness statements of Councillor Kaczmarek and Councillor Wood. In addition to the extracts and summaries set out above of their respective contributions to the meeting, the following is a summary of the other parts of their evidence that is relevant to this application.
20. Councillor Kaczmarek. The gist of his evidence was that Lanner has not had any social rented accommodation built for over 20 years and there are very few properties there to rent. The members of the Committee determining the application were fully aware of policy H20 and, in any event, the Planning Officer in attendance at the meeting reminded the Committee, that the local plan that it formed part remained a draft which had never been adopted, that the proposed development exceeded the number of dwellings set out in the policy, that that policy was out of date and that the Committee was entitled to grant permission if other considerations, including the extent of housing need, justified it.
21. The councillors on the Committee for this application were very experienced and were fully aware that policy H20 still had to be taken account of and of the limited weight that should be placed on its contents. Indeed two members of the Committee had played a significant part in the preparation of the Kerrier draft local plan so they would have been particularly aware that it was out of date. Overall, the Committee would have been aware that Cornwall Council's adopted policy in the December 2009 Housing Strategy document was the principle policy that had to be taken account of, particularly its priority to maximise the delivery of new affordable housing. He remembered, having listened to the entire discussion of the application by the Committee, that there was a lengthy debate about the significant need for affordable housing in Lanner for those with a local connection.
22. Councillor Wood. Councillor Wood stated that policy H20, although it remained a draft policy, was a retained policy following the demise of the Kerrier District Council and it had continuing reference in Cornwall Council's draft Development Plan. He did not himself recall that the Planning Officer informed the Committee that the number of dwellings being applied for exceeded the number provided for in H20 or that there had been a lengthy debate about housing need in Lanner for those with a local connection.
23. LPC's submissions. The submissions advanced by Mr Coppel QC on behalf of LPC were to the effect that H20 was to be applied as if it was an adopted District Local Plan. That policy was the prevailing policy in force governing the application when the Committee determined Coastline's planning application. Thus, the Committee was obliged to consider, interpret and apply policy H20 in that determination since it was the only relevant policy to be taken into account. The Committee was misinformed in the officer's report and recommendation that it received when it advised that the proposed development accorded with policy H20. This was a mistaken and significantly erroneous statement since it informed the Committee that the application for 25 affordable dwellings was in accord with policy H20. The application sought permission for more than double the maximum number of dwellings that were permitted by the policy yet H20 capped the maximum number of dwellings that could be permitted to about 12 and it did not permit that cap to be exceeded in any circumstances. It is clear from the report and from the evidence about the discussion at the meeting that the principle reason for the decision allowing the application was that the Committee understood the development was supported by H20 whereas it was in fact directly contrary to that policy.
24. Mr Coppel cited and relied on the judgment of Lord Reed, which the other Supreme Court Justices agreed with, in Tesco Stores Limited v Dundee City Council^[2]. The Supreme Court held that if a policy in a development plan was erroneously considered to mean something materially different to its objective meaning and a planning decision was taken on the basis of that erroneous meaning, the decision should be set aside. In that case, the policy required an assessment to be carried out as to whether the site was suitable for a particular purpose and the appeal was brought on the basis that the assessment that was carried out was related to a different purpose as a result of a misinterpretation of the wording of the development plan. Lord Reed concluded that the suggested misinterpretation had not occurred but, had he decided that it had, he would have set the grant of planning permission aside to be redetermined having taken the correct interpretation into account. In reliance on that case, Mr Coppel contended that since the Committee had misinterpreted policy H20, the grant of permission should be set aside.
25. Cornwall Council's submissions. The submissions advanced by Mr Sancho Brett on behalf of The Cornwall Council were that although the policy set out in H20 had the meaning suggested by LPC, that policy did not have to be applied rigidly or in this case. The policy remained in draft and the Committee had a discretion whether or not to follow it or to depart from it. There were good reasons why the Committee was entitled to depart from it in this case and the Committee was, therefore, correctly advised that the proposed development was permitted by the policy. The Committee was well aware of the policy and that it could depart from it if it found that there were good reasons for doing so. The Committee considered all relevant factors and decided, as it was entitled to, that it would allow the application notwithstanding the terms of policy H20. In doing so, the Committee exercise planning judgment and there were, in consequence, no grounds available to the court to interfere with that decision.

(4) Discussion

26. Meaning and effect of policy H20. It was accepted on behalf of The Cornwall Council that H20 had to be taken into account by the Committee when considering the application and that that policy set a ceiling or cap on the number of affordable dwellings permitted on the proposed development site which was expressed as being "about 12". The proposed development of 25 dwellings did not come within that definition but significantly exceeded it. However, Cornwall Council maintained that the policy was not rigid and was one that the Committee could, and consciously did, decide should be departed for good reasons and on planning grounds.
27. H20 had first been formulated in 2002 and its present draft was settled in 2004 following the public consultation exercise that had occurred following its initial formulation. At that point, and before the anticipated Public Local Inquiry took place, the formulation of an adopted local development plan ceased. Kerrier District Council decided to convert its development plan preparation work to the new Local Development Framework and to accord that work material consideration status. Some years later, at the time when Kerrier District Council became part of the new Cornwall Council unitary authority in 2009, it was contended by Councillor Wood that the draft Kerrier Local Plan including H20 was ordered by the Secretary of State to be a retained policy. Thus, according to Councillor Wood, H20 remained as the prevailing policy since Cornwall Council's 2010 Affordable Housing Development Plan had still not been adopted and, without H20, there would be no local policy in place governing the development of affordable housing in rural villages.
28. Councillor Kaczmarek, speaking with his considerable experience of housing planning policy at both Kerrier District Council and The Cornwall Council levels, did not challenge this account of the status of the 2004 document in which H20 is to be found. He stressed, however, that since the policy had never been adopted, it had never achieved the status of a development plan policy. Furthermore, it was seven years old and was now in the hands of The Cornwall Council since Kerrier District Council had ceased to exist. It was accepted by all those concerned with affordable housing policy in The Cornwall that H20 and the other relevant affordable housing policies inherited by Cornwall Council were no longer fit for purpose and that Cornwall Council was at an advanced stage in developing an up to date affordable housing policy which placed much greater emphasis on the growing need to provide much greater numbers of affordable housing. Moreover, in the last three years, it had become standard practice to set H20 aside and to consider affordable planning applications on the basis of local need and suitability on planning grounds rather than by reference to the cap imposed by H20.
29. These considerations showed that H20 is not now, and probably never had been, a policy falling within the statutory guidance provided for in section 70(2)the TCPA and section 38 of the Planning and Compulsory Purchase Act 2004. Those provisions required a local planning authority to have regard to the provisions of the development plan so far as material and unless other material considerations indicated otherwise. However, H20 was from its inception in 2004, a policy that had to be taken account of but the weight to be given to it was a matter for the committee deciding any particular application. Kerrier District Council clearly gave greater weight to it than The Cornwall Council now does. Given the age of the policy, the growing and pressing need for affordable housing and the absence of any new affordable housing in Lanner for over 20 years, it was open to the Committee in this application to give the H20 policy little weight and it was entitled to disregard it if it considered it appropriate to do so.
30. One difference of interpretation of the policy was highlighted by the evidence. H20 is intended to govern the use of the exception site policy so as to enable provision of affordable housing to be made on rural sites which would not otherwise be allowed to be developed at all. The Cornwall Council, adopting PPS3 guidelines as relied on in Cornwall's more recent strategy documents, focused on local need as being a good reason to depart from H20. What was clear, however, was that LPC considered that the local need that H20 was intended to cater for was the need for affordable housing for those currently living in Lanner whereas the policy documents and the Committee considered local need in a wider context and as covering the needs of those who had an historic as well as a current connection with Lanner and its surrounding parishes and, if necessary, in the area of the former Kerrier District Council. There are, therefore, potentially more of those with a local need on the basis of the Committee's approach than those with such a need on the basis of LPC's approach.
31. It follows that the question of the applicability of H20 is one of planning judgment. The Cornwall Council and its West Sub-Area Committee had to take it into account but were entitled to place little weight on it or even to disregard it altogether if it considered that there was clear evidence of local need for more than approximately 12 affordable housing connected with the local area in the wider sense of connection adopted by the Committee. Amongst other reasons for it being entitled to take this view was that H20 was not considered as being fit for purpose any more and was a policy that was in the throes of being changed and made more flexible given the acute and growing shortage of affordable housing in Cornwall.
32. What the sub-committee decided and how it decided it. LPC's submissions were premised on the basis that the advice it received that the application accorded with policy H20 and that the additional 13 dwellings were considered justified having regard to the current needs of the community was erroneous because H20 did not contemplate exceptions. However, the advice that the Committee had been given was justified in the terms it was given since H20 did permit its bright line rule of a cap of about 12 dwellings to be departed from in appropriate cases. This flexibility arose not from the wording of H20 but from the more general discretion available to the Committee to depart from the provisions of an unadopted policy in appropriate cases on planning grounds.
33. Moreover, the advice was given by officers in the context of there being a number of very good reasons for departing from that policy in this case since H20 remained a draft policy, was out of date, was unfit for purpose, was being considered against a background of limited affordable housing development in Lanner over the previous 20 years and in the context of a site which was advised to be suitable on planning grounds and which could accommodate local need for at least 25 new affordable dwellings. Furthermore, The Cornwall Council had a policy of seeking to reduce the great shortage of affordable housing which, for historical, social and economic reasons was particularly acute. In those circumstances, there would appear to be no misinformation or error contained in the advice that the application accorded with policy H20 or that it could be departed from having regard to the current needs of the community. Policy H20 had to be applied in a flexible way by an informed planning committee to perceived housing need and with such weight as it considered appropriate. Given all those considerations, it cannot be said that the advice was erroneous or a misstatement of the effect of the policy.
34. LPC's answer to these points is two-fold. It contends that the Committee was erroneously informed that H20 itself permitted more than about 12 dwellings and that it was not in fact informed that the policy could be departed from if, but only if, it consciously decided that exceptionally it could do so. Therefore, since it was both misinformed about the meaning of the policy and did not undertake the necessary consideration of whether it should exceptionally depart from the policy, its decision was flawed and should be set aside.
35. However, neither of LPC's contentions about the advice provided to the Committee and the way that it reached its decision is justified by the evidence that was presented in opposition to this application for judicial review. A consideration of the officer's report to the committee, the minutes of the meeting, the evidence of Councillors Kaczmarek and Wood and the other witness statements and documents that were exhibited to their witness statements, the salient parts of which have been summarised above, shows that:

(1) The Committee was advised by the case officer's report that policy H20 supported the provision of affordable housing that met the needs of the whole community.

(2) The Committee members were very familiar with policy H20 and were also aware that consideration had to be given to it and that that very little weight attached to it.

(3) At the meeting, members of the Committee were advised by the Development Management Group Team Leader that H20 could not be afforded the same weight as relevant Government policies and that it needed to be considered in its proper context which was to secure the delivery of cheap local housing where there was evidence of local need. He explained that the Committee was entitled to grant permission in this case if other considerations including the extent of housing need justified it.

(4) The Committee was also informed by both the Development Management Group Team Leader and Councillor Kaczmarek that permission had been granted for two developments in the Kerrier District Council area, one for 19 and the other for 18 affordable dwellings.

(5) The Committee was also informed that the development should only be permitted if it was satisfied that its size and location would meet local housing need for affordable housing in Lanner parish.

(6) There was a lengthy debate about local housing need. This concluded that, based on the advice and evidence that had been made available to the Committee, there was local housing need that would exceed the provision of 25 new affordable dwellings.

36. I conclude from this evidence that the Committee was told that H20 would permit permission to be granted. This advice was in the context of the Committee having a discretion to decide not to apply the cap on development policy and not in the context of it being told that H20 itself provided the authority to approve a 25-dwelling application. In other words, the Committee was informed that, was aware that and took its decision in the light of knowing that policy H20 in its terms prohibited permission in this case because the proposed development greatly exceeded the maximum number of dwellings allowed by that policy. The Committee then granted the permission because it was equally aware that it had an overriding discretion outside the policy which would allow the Committee to allow the application if it considered that there was a local housing need for the provision of affordable housing on the application site to the extent proposed.
37. It follows from this conclusion that no question arises as to an actual or potential error of law arising from the Committee's misunderstanding of the meaning of policy H20. The Committee during its deliberations and The Cornwall Council at the hearing of this application knew and accepted that the ceiling figure of about 12 was one that could not be departed from if the wording of policy H20 was applied. This was a correct understanding of that wording. However, both the Committee at the meeting and The Cornwall Council in this application also knew that the Committee had a discretion to depart from that black letter policy by permitting a rural affordable exception site development in excess of about 12 dwellings if that was in its opinion justified by its perception of local housing need for such dwellings.
38. Conclusion - issue 1. I conclude that the Committee was not misinformed about the meaning of policy H20 and that the advice it received was to the effect that it had to be taken into account and that, if it was applied as stated, the consequence would be a refusal of the application. However, the Committee was entitled to give the policy little weight and to decide to approve the application on the grounds that it would assist in satisfying local need for affordable housing. Furthermore, it is clear that in addition to the Committee members being given advice along these lines, they were all experienced members in local planning issues who would have been advised about the current effect of policy H20 on previous occasions and who must have acquired a detailed knowledge of whether and in what circumstances they could decline to give effect to the policy and permit a development which exceeded the capped numbers provided for in policy H20.
39. In short, LPC's challenge that is dealt with in issue 1 fails.

D. Issue 2 – Miscalculated and erroneous data of local housing need placed before the Committee

(1) The issue in outline

40. It was contended on behalf of LPC that the Committee was provided with data that was intended to show the number of people for whom the new affordable housing would be able to satisfy their housing need for affordable housing. These people were those with a local connection and housing need who wished to live in Lanner parish. LPC's contention can be explained in this way:

(1) Policy H20 was intended to provide for affordable housing for those in local housing need.

(2) It was necessary to establish this need by obtaining evidence of the number of people who had a housing need, a local connection and a desire to live in Lanner.

(3) Cornwall Council's planning officers obtained three sources of data to establish the level of local housing need.

(4) The level of local housing need that was identified was excessively high because it was derived from a mistaken analysis of the data that had been obtained.

(5) Once the reliable parts of the obtained data were correctly analysed, the level of local housing need was significantly reduced and was for about 10 dwellings.

(6) Had the Committee been presented with correctly analysed data, it is possible that it would have decided to apply the H20 development cap of about 12 dwellings.

(7) The Committee's decision was vitiated by an error of law since it had taken into account an excessive level of local housing need that had been derived from a mistaken analysis of the obtained data.

41. Before considering this submission, I will set out the principles governing a review of the kind that arises in my consideration of issue 2. The complaint is, essentially, that incomplete data was collected and was then erroneously evaluated and then presented to the Committee so that it took account of misinformation when considering whether to grant planning permission.
42. In considering this complaint, it is necessary to keep in mind the role of the Committee and the limited basis on which a court can intervene to quash a decision which is challenged. The Committee was concerned with a decision involving planning judgment. In this case, they had to decide whether or not the local need for affordable housing outweighed the general discouragement of developing a green field rural site. This required the Committee's members to consider the material that they had been supplied and all relevant planning policies. The members were not involved in a fact-finding exercise but in a policy evaluation exercise. It followed that the weight that should be given to the matters that they considered and the decision itself involved matters of planning judgment. The court therefore has a very limited role in reviewing that decision. It can intervene if the Committee made an error of law or failed to take into account material considerations. It cannot, however, consider whether the decision itself was erroneous unless that decision was perverse. This is particularly so when the matters complained of involved the weighing up of policy issues. There is marginally more scope for intervening if the Committee reached purely factual conclusions, but only if those findings were perverse.
43. The limited function of the court may be seen from this passage in the judgment of Lord Hoffman in Tesco Stores Ltd v Secretary of State for the Environment and others^[3]:

"56. ... The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

57. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

(2) LPC's Submissions

44. Mr Coppel QC reminded me that LPC's objection was that the Committee had made an error of law. He submitted that this error of law occurred because the information presented to the Committee by LPC's officers contained a miscalculation of the number of people with a local connection and housing need, a failure to consider whether or not those people had a desire to live in Lanner parish and a failure to identify "the local community". He that the evidence of 'housing need' that Cornwall Council had was only presented to the Committee as an undifferentiated single figure of those having a 'housing need' and that that figure lumped together as one those whom the Council had actually assessed as having 'urgent housing need,' 'high housing need', 'medium housing need', 'low housing need' or 'adequately housed.' Nor, he said, did what the Committee was presented with differentiate between those who had expressed no wish to live in Lanner from those who had expressed a wish to live in Lanner. All the that the Committee had been given was a figure of 51 applicants, with no division of that number according to whether or not they were the sort of applicant with which the policy was concerned.

(3) Discussion

45. General. Mr Coppel's submissions demonstrated, he contended, that the Committee's decision had been occasioned by an error of law. However, the members' consideration of the material presented to it, and the way that that material was presented, all involved issues of planning policy and judgment. Thus, what should be taken to be "a local connection" or "the local community" or considered as evidence of "housing need", how much weight should be placed on the number of people whose views were surveyed who expressed a desire to live in Lanner parish all involved matters of planning judgment. It follows that LPC's challenge in issue 2, which is expressed to be one of law, can only succeed if the Committee's decision was perverse.

46. Local housing need. LPC contended that since H20 defined its applicability as being to provide for the needs of the local community, only those who lived in or had expressed a desire to live in Lanner parish were entitled to the benefit of that policy. However, the Committee was not limited in that way if it chose not to be. It is clear from the officer's report, from the minutes of its discussion and from the terms of the section 106 agreement defining who would be eligible for the affordable housing that was to be constructed that the Committee did not consider that it was so limited. The local community that could take advantage of this development if what was permitted was considered by the Committee to extend to anyone who had a connection with the parish of Lanner and, if an insufficient number of applicants with such a connection presented themselves, it extended further to those who had a connection with any of the seven parishes with a boundary adjoining Lanner parish and, if an insufficient number of applicants with a connection with any of those parishes presented themselves, it extended further to anyone with a connection with the former Kerrier District Council.

47. A further difference of approach was as to the nature of the connection being considered. LPC considered that the connection had to be defined as someone or a family group currently living in Lanner. Cornwall Council applied a somewhat more flexible and realistic approach as exemplified by the definition of connection in the section 106 agreement. On this approach, a local connection was provided by anyone who permanently resided in the relevant area or had formerly resided there for a continuous period of five years or had his or her permanent place of work there being a working week of at least 16 hours or had a connection through a close family member who had a residence connection with the area.

48. A yet further difference of approach was as to the definition of need. LPC's approach was not clearly defined but appeared to exclude one third of the responses to its survey on the grounds that the household of the person responding was an owner occupier. This despite the fact that that household might contain family members such as younger family members who had a significant need to be rehoused in an affordable home. It also dismissed as being ineligible those in Bands D and E on the Homechoice Register who were included in the data presented to the Committee as being eligible for affordable housing in Lanner. This Register records all those who have applied for a social housing tenancy and the applicant must show that he or she qualifies. The qualification requirement is similar to the qualification requirement for affordable housing imposed by the section 106 agreement. The Affordable Housing Team Leader of Cornwall Council in his witness statement stated that everyone on the Register was eligible to apply for affordable housing in Lanner and that its banding was purely an assessment of the current urgency of need for affordable housing.

49. Nature of evidence required by the Committee. Whether or not someone qualifies for affordable housing and can demonstrate a local connection cannot be demonstrated solely by readily identifiable and accessible factual data. In addition to a wish to apply for an affordable housing tenancy in Lanner, the individual ought ordinarily to be someone who cannot afford to buy or rent privately in that area and who objectively has a reasonable need or intention to live in that area. There is no register of people who, if offered the chance, would apply for and agree to the grant of a Lanner affordable housing tenancy. The circumstances of individual potential applicants are so different that any survey of overall need can only rely on general and easily accessible factors such as those who have applied to join the Cornwall County Homechoice register or who have answered a targeted survey or who have expressed an interest in a tenancy from a county-wide social housing provider such as Coastline. These sources of potential numbers and overall affordable housing demand can only provide indicia of affordable housing need in a particular location at any given moment in time and the interpretation of that information involves considerable expertise and a detailed knowledge of local conditions, relevant housing and homelessness policies and other specialised factors which all broadly come within the umbrella of planning judgment.

50. It follows that although the planning decision involved in this case must be evidence-based, the evidence that can be provided is not precise, readily obtainable or susceptible to rigorous analysis and examination. It also follows that a planning committee that has taken the relevant data and accessible information about affordable housing need into account, is permitted a wide margin of appreciation in deciding how it should be interpreted and what weight should be placed upon it. In other words, it will be an exceptional case where a planning committee is judged to have acted irrationally in granting planning permission on the basis of its assessment of housing needs data and its decision that the proposed development will help to fulfil county-wide policies concerned with the provision of affordable housing.

51. It is noticeable that there is no currently available guidance as to what data should be obtained and how it should be obtained, analysed and presented to assist in decision-making about affordable housing. It is repeatedly stated that such decisions should be evidence-based but even the most recent relevant guidance in the current version of PPS3 merely states in Annex C that strategic housing market assessments are an important part of the policy process and that practice guidance will set out, in the case of such assessments, an estimate of housing need and demand in terms of affordable and market housing without giving any guidance as to how such assessments should be undertaken. It follows that an important part of the planning judgment that is involved in a need assessment such as those considered by the Committee in this case is the decision of what evidence should be considered at all, how that evidence should be gathered and how it should be assessed once it has been gathered.

52. Evidence obtained and presented to the Committee. As can be seen from the extract from the officer's report to the Committee already quoted^[4], the Committee was provided with a summary of the results of three surveys.

53. Coastline. Coastline carried out a consultation event in September 2008 to assess the needs of the entire village and to identify potential development sires. After this event, Coastline undertook a housing needs survey across the entire village. The results of this survey indicated that 37 households were in housing need and the majority, given their income levels, would require rented accommodation. This survey was carried out in December 2008 and it consisted of a list of boxes to tick which related to the connection between the person answering the survey with Lanner parish, the type of home needed to rent and the household income in bands of £5,000 from less than £15,000 to more than £40,000. The survey form stated that it had come from Coastline and related to affordable housing for local people. It explained that Coastline was looking to develop affordable housing in the Lanner area and it needed to know the level of housing need. The survey form was sent to all households in Lanner parish and 48 survey forms were returned representing a 4.8% response rate.

54. Coastline reported that 37 of the responses identified an affordable housing need and that most of the respondents to the survey were on low income. Coastline owns almost 4,000 homes in Cornwall and has a detailed knowledge of the demand for and availability of affordable housing since its role is to identify and develop sites containing affordable housing sites and then rent these out or sell them on a shared ownership basis.

55. Coastline provided evidence to support their conclusion as to the level of local demand for affordable housing by reporting that since November 2008, it had received over 100 enquiries from households asking to move to Lanner.

56. LPC contended that this housing survey lacked any objectivity and relied entirely on the subjective assessment of those completing the questionnaire. Moreover, it did not identify either need, local connection or a desire to live in Lanner. On its behalf, Mr Coppel boldly submitted that these shortcomings vitiated the survey and that, in consequence, it should not have been taken into account at all. It is difficult to comprehend these objections since they are equally applicable to Lanner's survey. Both relied on the subjective assessment of those answering the questionnaire and both purported to identify need, local connection and a desire to live in Lanner since both made it clear that they were seeking to find out the level of housing need in Lanner in the context of providing affordable housing for people in Lanner or who wished to live in Lanner and both also sought evidence of a Lanner connection and of household income.

57. LPC. LPC carried out a Local Needs Housing Survey in May 2010 with a questionnaire delivered to each of the 1181 households within the parish. A copy was also sent to each of the households on the Homechoice register living outside Lanner parish. 252 questionnaires were returned of which 30 wished to be considered for local needs housing. Of these 30, 10 were judged by LPC to meet local needs housing criteria. A copy of the questionnaire sent out was not in evidence but it was stated to be objective and comprehensive and included questions aimed at establishing the extent of local connection, housing need and preferred location.

58. This survey was similar to Coastline's survey although the questionnaire appears to have been more detailed in the questions asked. It received 30 responses expressing a wish to be considered for an affordable home in Lanner of which LPC discounted 20 as being from those who did not have a housing need. The Affordable Housing Officer suggested that this was a somewhat arbitrary discount since the individual circumstances of those 20 could well have rendered them eligible for an affordable home. Moreover, the survey did not address, and was not sent to, those with a strong local connection to Lanner but were not living there at the time of the survey save for those who were on the Homechoice register.

59. Homechoice Register. This Register has already been referred to^[5]. The Affordable Housing Officer confirmed that the Cornwall Homechoice Register had 51 applicants registered on it with a local connection to Lanner parish.

60. This information was said to have been flawed for two reasons. Firstly, it aggregated the applicants with a Lanner parish connection from each of the five bands which ranged from urgent housing need (Band A) to adequately housed (Band E) with intermediate bands of high, medium and low housing need. On behalf of LPC it was contended that the affordable housing needs of Band E were very much less than for B and A. However, the Affordable Housing Team Leader explained that everyone on the Homechoice Register is eligible for affordable housing and that the banding is merely a way of ranking the priority of all those with housing need.

61. It was secondly contended that the figure of 51 applicants with a local Lanner connection does not identify how many of those wished to live in Lanner. It was contended that this figure should be significantly reduced since information supplied after the meeting by the Affordable Housing Team Leader showed that only 41% of those with a local Lanner connection on the Register in September 2011 also expressed the wish to live in Lanner. It was therefore suggested that the Homechoice Register showed, when properly analysed, that only about 7 – 11 people on the Register had both a local housing need and a wish to live in Lanner.

62. It is doubtful, however, whether this is an appropriate method of ascertaining the number of people on the Register whose relevant local housing need would be satisfied by the offer of a tenancy in one of the proposed affordable homes in Lanner parish. Firstly, the policy of meeting local need on an exception or rural site was geared to meeting the needs of those who had a historic connection with Lanner, the surrounding parishes and the former Kerrier District, in that order. Thus, the figure of those living in Lanner on the Register is inevitably significantly smaller than those who have the appropriate connection being considered by the Committee. Secondly, many with a relevant local connection who had not specified that they would prefer to live in Lanner would, nonetheless, accept the offer of an affordable home tenancy there if it was offered to them as a reality. Thus, the number of 51 people on the Register who are referred to by the report to the Committee as being the relevant number of people with a local affordable housing need was inevitably far smaller than the number of number of those who qualified for a Lanner tenancy and who, given that chance, would accept a Lanner offer.

63. Other evidence. The Committee also had their own collective and individual knowledge of the general affordable housing situation in Cornwall and in the Lanner, Mining and adjacent villages and of the lack of any new affordable housing being build in Lanner for many years and the absence of any fit for purpose affordable housing policy for the Lanner parish area.

64. Committee's decision. The Committee's decision approving the application was stated in these terms:

65. "The Affordable Housing Officer had confirmed that the Cornwall Homechoice Register has 51 applicants with a local connection to Lanner parish. The developments accorded with policies 8, 9 and 10 of the Cornwall Structure Plan, policies H14 and H20 of the Draft Kerrier District Local Plan 2004 and Government advice contained within Planning Policy Statement 3."

(4) Conclusion

66. It can be seen that the Committee placed greater weight on the Homechoice Register details than on the other survey results and appeared to place little weight on the suggested shortcomings of that material. It is not for me to express any views as to whether the data extracted from the Register presented an accurate measure of local affordable housing need, whether it could or should have been presented in a different way or whether it should have been preferred to and be afforded greater weight than the LPC and Coastline data. All these matters involved the exercise of planning judgment and the application of planning policy. It is, however, clear that it was not demonstrated that the Homechoice Register data should have been corrected in the ways suggested by LPC in argument or that the Coastline survey could or should have been dismissed as being a flawed assessment. Furthermore, the surveys were not statistically valid surveys of identifiable fact. At best, they provided an indication of local housing need to enable generalised conclusions to be drawn by the decision-makers as to whether or not to approve the application.

67. The only way in which LPC would be entitled to have the Committee's decision set aside would be if it could show that that decision was perverse. The decision was not perverse and the weight given by the Committee to the material before it was not challengeable since, whatever the imperfections of that material might be, and no glaring imperfection was shown to have existed, the decision was incapable of being characterised as being perverse.

68. In short, LPC's challenge that is dealt with in issue 2 fails.

E. Overall Conclusion

69. LPC's application for judicial review of The Cornwall Council's decision of 7 November 2011 is dismissed.

HH Judge Anthony Thornton QC

Note 1    Paragraphs 63 – 69 of the Structure Plan.    [Back]

Note 2    [2012] UKSC 13, SC.    [Back]

Note 3    [1995] 2 All ER 636, HL(E).    [Back]

Note 4    See paragraphs 32 – 34 of the report that are reproduced in paragraph 16 above.     [Back]

Note 5    See paragraphs 48 – 49 above.    [Back]