CO/2634/2014 
Neutral Citation Number: [2014] EWHC 4225 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 23 October 2014
 
B e f o r e: 

MR JUSTICE DOVE 
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Between:

EASTLEIGH BOROUGH COUNCIL 
Claimant

v 

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT 
Defendant
 
TAYLOR WIMPEY UK LIMITED
Interested Party

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Mr Steven Woolf (instructed by Hardwicke Solicitors) appeared on behalf of the Claimant
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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J U D G M E N T
MR JUSTICE DOVE:  
Background 
1.	This is a case about the calculation of the five‑year housing land supply.  In order to boost the supply of housing and to ensure an output of continuous supply of housing, the National Planning Policy Framework contains a requirement for a five‑year housing land supply as a litmus test as to whether or not that policy objective has been achieved.  In particular, the Framework provides as follows:
"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..."
2.	The question of what is "deliverable" is further set out in footnote 11 to paragraph 47, as follows:
"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."
3.	In addition to this, and current at the time when the Inspector in this case reached a conclusion, the Government had published planning practice guidance which is with the object of providing further guidance in relation to important aspects of the Framework.  That provides as follows:
"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 facts 
4.	On 30 November 2012, the Interested Party made a planning application to the Claimant for planning permission for up to 150 dwellings at Hamble Lane, Bursledon, in the Claimant's administrative area.  They refused that planning application on 21 May 2013 and an appeal ensued.  There was a public inquiry into the appeal proposals held between 8 and 10 April 2014, and on 29 April 2014 the Inspector allowed the appeal.
5.	He identified as the main issue in the appeal before him the following matters:
"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."
6.	It is necessary for the purposes of this challenge to quote at some length the conclusions which the Inspector reached in relation to that final issue, namely the available supply of housing, and in particular whether it fulfilled the Framework's aspiration for a five‑year land supply.  His conclusions were as follows:
"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."
7.	Having considered issues in relation to the housing requirement, the Inspector then drew the threads of his conclusions together on this issue as follows:
"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." 
8.	These conclusions were reached after the Inspector had undertaken both a round table discussion in relation to the deliverability of sites and had also heard formal evidence and cross‑examination of expert witnesses before him as to the correct approach to all of the elements that needed to find their way into the five‑year housing supply calculation.   
9.	Having concluded that the Council could not demonstrate a five‑year supply of deliverable housing sites, that then fed into the Inspector's conclusions in relation to the overall planning balance and led him to the conclusion that planning permission should be granted.
The law
10.	This is a challenge under section 288 of the Town and Country Planning Act 1990.  It is an error of law jurisdiction and proceeds on the basis of ordinary public law grounds.  As is well known, at a section 78 appeal there is an opportunity for a full and independent merits review of the planning circumstances of a particular proposed development measured against the requirements of section 70 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.  
11.	As I have said, once that appeal process has occurred, any subsequent challenge under section 288 of the Town and Country Planning Act is not a forum for a full merits review of the decision; only if something has gone wrong in law will the court step in to grant relief.  Those matters that might amount to errors of law are well known.  For instance, it is necessary for the decision maker to take account of an material considerations and ignore immaterial considerations; it is necessary for the requirements of fairness in the procedures of the appeal to be observed; it is also important to ensure that, the decision maker has not exceeded the bounds of rational judgment, and having taken account of material considerations, any challenge of this kind does not seek to be based upon weight to be attached to individual factors in striking the overall planning balance of the case.  The weight to be attracted to the various material considerations, once they have been properly identified, is clearly a matter within the province of the decision maker in striking an appropriate planning balance measured against the statutory framework which I have set out above.
The grounds
12.	The Claimant in this case brings the challenge on the basis of a failure to have regard to material considerations.  As articulated in the Claimant's skeleton argument by Mr Steven Woolf, who appears on behalf of the Claimant, it is a concern that in reaching the Inspector's conclusions about the deliverability of in particular those elements of the housing supply about which he expressed concern, the Inspector gave (paragraph 30(iv) of the skeleton argument) far too much weight, for instance, to the absence of proforma returns in relation to half of the sites which were being relied upon by the Council as noted in paragraph 29 of his decision.  Furthermore, it is said that the Inspector in approaching the question of deliverability applied insufficient weight to the evidence which was provided by the Council in relation to those sites and misled himself as to what the requirements of being deliverable and available now might be.
13.	I am unable to accept those submissions.  They are, to my mind, impermissible attempts to reopen the merits in this case.  As will be obvious from the paragraphs from the Framework and the consequential guidance which I have alluded to above, in my judgment the question of whether or not a particular site is deliverable, and the extent to which it will deliver dwellings within the five‑year period for the purposes of calculation, is self‑evidently a matter of mixed fact and judgment which it is for the Inspector to reach.  Such definition as might be required in relation to the question of what may be deliverable, and the parameters for the decision maker to reach that judgment, are, to my mind, clearly set out in the passages which I have quoted above, both from the Framework and the PPG.  
14.	I can see nothing in any of the paragraphs which I have quoted, but in particular paragraphs 29 to 31 of the Inspector's conclusion, that gives any grounds for any suggestion that he either failed to approach the question of deliverability with that guidance and that policy clearly in mind, or that he reached conclusions taking into account matters which were immaterial.  It was plainly material to the question he had to determine as to whether or not there were positive responses in respect of certain of the sites relied upon and plainly a material consideration which he was entitled to have regard to that in relation to some sites no developer had been identified.  
15.	Having said that, there may be other cases in which a decision maker might reach a contrary view and might consider that those factors were not matters which had a substantial or determinative bearing on whether a site was deliverable.  All of these matters are questions of judgment about which this Inspector was fully informed by the debate which he heard at the section 78 inquiry.  They are not matters which, in my judgment, properly form a criticism when it is plain from the record of his decision that he has only had regard to matters which can be regarded as properly material and which have a relationship to the policy and guidance.  I emphasise, I am not suggesting what the Inspector said in this case applies in all cases; I simply observe that what he relied upon are matters which are capable of being material.  Once they are material, the weight to be attached to them will then be for each decision maker to decide in the particular circumstances of the application or appeal before him.  Thus, for those reasons, the basis on which the challenge proceeds is, in my judgment, unsustainable.  
16.	There is, however, a further and formidable difficulty in the way of the Claimant in this case.  That difficulty is articulated by the Inspector in paragraph 36 of his decision.  There is a danger in a case of this kind that by seeking to explain what the Inspector said one ends up giving further reasons, when in fact the reasons in paragraph 36 are both elegant and carefully expressed.  But I trespass into that area because what in truth the Inspector was saying in paragraph 36 of his decision was that the Council were in this case on a Morton's fork in relation to the five‑year plan supply.  When one does the calculations, as I undertook with Mr Woolf during his submissions to me, it becomes clear that the issues which are raised by the Council as to whether or not the Inspector was right to cast doubt over the 3,447 dwellings was not necessarily determinative of the case.  As the Inspector says in paragraph 36 of his decision, either the Council's case about the application of the "Liverpool" method is correct, in which case they cannot claim that 3,447 dwellings will be delivered, or, alternatively, they can rely upon 3,447 dwellings but that inevitably brings the "Sedgefield" method into play.  Either way, they could not make a five‑year housing land supply.
17.	Mr Woolf, faced with that difficulty, contends that the Inspector ought to have reached some positive conclusion about which of the ways in which the Council have failed to demonstrate a five‑year land supply were operative in this case.  I note in passing that that amounts in effect to a reasons challenge which had not hitherto been raised.  Nevertheless, even were it pleaded, it is not a case which is remotely attractive.  The requirement of the Framework was for the Inspector to assess whether or not the five‑year land supply had been demonstrated by the Council.  
18.	As I described at the outset of this judgment, that is a litmus test.  The Council are either able to demonstrate the five‑year land supply or they are not, and if they are not then the other policy consequences of the Framework come into play and the Inspector has to investigate further the consequences in policy terms of that conclusion.  It is not necessary, bearing in mind the requirement of the Framework, either for the Inspector to make a definitive finding as to why the Council failed to have a five‑year land supply when on either view they were unable to demonstrate it, or to come to any definitive concluded view beyond a (Inaudible) that the Council had not, in accordance with the requirements of the Framework, demonstrated that they had a five‑year housing land supply. 
19.	For all of those reasons, this challenge must fail.