QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|EASTLEIGH BOROUGH COUNCIL||Claimant|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||Defendant|
|TAYLOR WIMPEY UK LIMITED||Interested Party|
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Mr Stephen Whale (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Mr Christopher Boyle QC (instructed by Wragge Lawrence Graham) appeared on behalf of the Interested Party
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MR JUSTICE DOVE:
"47. To boost significantly the supply of housing, local planning authorities should:
Identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land..."
"To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans."
"What constitutes a 'deliverable site' in the context of housing policy?
Deliverable sites for housing could include those that are allocated for housing in the development plan and sites with planning permission (outline or full that have not been implemented) unless there is clear evidence that schemes will not be implemented within five years.
However, planning permission or allocation in a development plan is not a prerequisite for a site being deliverable in terms of the five-year supply. Local planning authorities will need to provide robust, up to date evidence to support the deliverability of sites, ensuring that their judgements on deliverability are clearly and transparently set out. If there are no significant constraints (e.g. infrastructure) to overcome such as infrastructure sites not allocated within a development plan or without planning permission can be considered capable of being delivered within a five-year timeframe.
The size of sites will also be an important factor in identifying whether a housing site is deliverable within the first 5 years. Plan makers will need to consider the time it will take to commence development on site and build out rates to ensure a robust five-year housing supply."
"The main issue raised by the appeal is whether this residential development would be warranted here given the presumption against such development in the countryside gap which separates Bursledon and Southampton; the landscape and visual impact of the development; and the available supply of housing within the Borough."
"26. Notwithstanding its consistency with the Framework's requirements, that policy objection [those relating to landscape, visual impact and countryside gap] is not determinative if, as here, the spatial application of that policy is out of date and needs to be altered in order to meet the objectively assessed development needs of the Borough. Indeed, the Council have now granted planning permission for more than 900 dwellings to be built in the countryside and have resolved to grant outline planning permission for over 600 more to be built here outside established settlement boundaries, including the development of two sites within the (Policy 2.CO) strategic gap.
27. Overall, the Council have resolved to grant permission for 758 dwellings in addition to the 1975 which have been permitted and which they expect to be delivered within the next five years. In order to demonstrate a five-year supply, they also rely on delivery of 75% of the (952) other units which are identified in proposed (EBLP [the emerging Eastleigh Borough Local Plan]) allocations, but for which no application has yet been made.
28. For the purposes of calculating housing supply, some uncertainty attaches to each of the figures given above. For example, the expectation that land to the north-east of Boorley Green and land to the north of Pylands Lane will provide 525 and 250 dwellings respectively, within five years, is subject to the outcome of a potential judicial review which might affect the Council's (November 2013) decisions to grant planning permission for these developments. Nevertheless, a high court judge has already ruled that such judicial review is unarguable and, whilst the judge's decision is now subject to appeal, I see no particular reason to believe that the decision will be overturned. Indeed, I find no persuasive reason to discount the expected supply of deliverable housing from sites with planning permission, bearing in mind that the Council place no reliance on the development of windfall sites which, since 2001, have supplied an average of 74 dwellings per annum.
29. I have less confidence in the Council's expectation that, within the next five years, there is realistic prospect of 758 dwellings being delivered on sites with a resolution to grant permission and of 714 being built on sites identified in the proposed EBLP allocations. Pro-forma returns on progress towards development are not available for half of the sites and, for some where a return has been made, it is evident that no developer has yet been identified.
30. Also, whilst I accept that proposing an allocation indicates that the Council might look favourably on an application to develop a site, the EBLP suggests that the development brief would need to address a substantial set of demands, in some cases, and planning obligations have yet to be negotiated. In any event, the allocations themselves have yet to be confirmed and I am not convinced, from evidence to this inquiry, that the sites themselves are available now.
31. These considerations suggest that, notwithstanding the Council's Housing Implementation Strategy and the encouragement they give to housing delivery, their claim to have identified a five-year supply of 3447 dwellings is unduly optimistic.
32. That claimed supply would exceed the Borough's housing requirements, by no more than about 250 dwellings, if those requirements were to be based on the EBLP proposals, rather than on the findings of the (May 2013) South Hampshire Strategic Housing Market Assessment (SHMA); if any shortfall in planned provision were to be made up over the remainder of the EBLP period (the 'Liverpool' method), rather than over the next five years (the 'Sedgefield' method); and, if the additional buffer were to be only the 5% that is needed to ensure choice and competition in the market for land, rather than the 20% which would be warranted by persistent under delivery in the past. The Council rely on all three of these provisos in order to demonstrate a five-year supply."
"36. The shortfall in delivery, since the (2011) beginning of the EBLP period, is already 667 dwellings, when judged against the (EBLP) suggested provision for 564 dpa [dwellings per annum], or 820 dwellings when measured against the SHMA indicative apportionment of 615 dpa. Whilst the government would prefer that the shortfall is dealt with during the first five years, the Council argue that the ('Sedgefield') required completion rate, of about 681 dpa, is unrealistic given the time that is needed for the construction industry to recover from recession. However, that completion rate is very similar to the 689 dpa that would be needed if, as the Council suggest, it is realistic to expect that 3447 dwellings will be delivered over the next five years. A completion rate of 680-690 dpa is either realistic, or it is not. If it is realistic, the current shortfall should be made up over the next five years. If it is not realistic, I cannot accept that 3447 dwellings are likely to be provided over the same period.
37. In the circumstances, I conclude that the Council have failed to demonstrate a five-year supply of deliverable housing sites, irrespective of whether housing requirements are judged against the EBLP (as the Council suggest) or the SHMS (as the appellant suggests) and irrespective of whether there is a record of persistent under delivery of housing within the Borough."