QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Bloor Homes East Midlands Limited
|- and -
|Secretary of State for Communities and Local Government
|- and -
|Hinckley and Bosworth Borough Council
Mr James Maurici Q.C. (instructed by the Treasury Solicitor's Department) for the First Defendant
Mr Timothy Leader (instructed by Michael Rice, Solicitor, Hinckley and Bosworth Borough Council) for the Second Defendant
Hearing date: 16 December 2013
Crown Copyright ©
Mr Justice Lindblom:
The inspector's decision letter
"The 4.4ha appeal site is in the Green Wedge that separates the villages of Groby and Ratby. Although within Ratby Parish, it borders residential development in Groby and there is open land between the site and Ratby village. There have been several unsuccessful planning applications for housing on the site, the most recent resulting in a dismissed appeal in 2011. The Appellants have also sought to promote the site for housing at the local Inquiries into the Local Plan and Core Strategy."
"6. The 2011 appeal was decided in the light of the 2009 Core Strategy and at a time when the Council did not have a five year supply of housing land. Since then, in March 2012, the National Planning Policy Framework ["the NPPF"] has been issued. The Appellants have drawn attention to paragraph 49 of the NPPF, which says that housing supply policies should not be considered up to date if the local planning authority [cannot] demonstrate a 5 year supply of deliverable housing sites.
7. The calculation of housing land supply is not an exact science. The dispute between the parties relates largely to the choice of predictive models. The Council prefers the "Liverpool" method, which spreads any shortfall in a given year over the remainder of the Plan period and is appropriate where there is not a severe shortage. On that basis the Council can show a supply of housing land extending to 5.27 years or 5.02 years if a 5% buffer is applied.
8. The Appellants prefer the "Sedgefield" model, which seeks to meet any shortfall earlier in the Plan period, on the basis that this approach accords with the views of the government, as set out in paragraph 47 of the NPPF with regard to boosting housing supply. They draw attention to a number of appeal decisions where this approach has been adopted. They also suggest that the 5% buffer is insufficient and that a 10% or 20% buffer would be more appropriate. This approach has some force given that the Council can only show a supply marginally in excess of five years.
9. Nonetheless, the Liverpool model is a recognised way of calculating housing supply. The Core Strategy Inspector anticipated that there would be shortfalls in housing land supply in the early years and that these would be made up later in the Plan period when, for example, the [Sustainable Urban Extensions] came on stream. It is clear from the Council's evidence that progress has been made with the Earl Shilton and Barwell [Sustainable Urban Extensions] and that planning permission for the Barwell [Sustainable Urban Extension] is likely to be granted in the spring of this year.
10. The Appellants point out that the Core Strategy Inspector's conclusions were based on the expectation that sites would be brought forward in the [Site Allocations DPD], the production of which has been delayed by several years. That situation was, however, known to the Inspector dealing with the 2011 appeal.
11. Given the inherent uncertainties in any predication of future supply and the fact that it is a method that chimes with the approach in the Core Strategy, I consider that it does provide a reasonable basis for assessing future supply. On that basis I conclude that the Council has shown that it has a five year supply of housing land. Furthermore, it is clear that the Council is not averse to boosting the supply of housing. Specifically, it is proposing to allocate land for housing in Groby. In the context of this appeal, it is not the amount of housing that is in dispute but its location."
"13. The consultation period for the [Site Allocations DPD] Preferred Options Report ended in April 2009 and the document is in the process of being amended in the light of the responses received. A pre-submission draft is due to be published in August of this year, followed by submission to the Secretary of State at the beginning of 2014. The fact that the Council has identified the appeal site as a preferred option for housing development is clearly a factor that lends support to the Appellants' position. Nevertheless, as in 2011, the weight to be attached to it is limited by the fact that the document in question is a consultation draft.
14. The local community, both as individuals and through the Parish Councils, have been actively involved in the consultation process. It may be that this process will result in the appeal site being allocated for housing development. To grant planning permission at this time, however, would pre-empt a decision that should properly be made through the development plan process. It would render futile the work done by the Council and the contributions made by the local community, thereby reducing public confidence in the planning process and would be contrary to the spirit of paragraphs 12 and 17 of the NPPF."
"15. In conclusion I consider that the Council has an up to date development plan in the form of the 2009 Core Strategy, that it has shown the existence of a five year supply of housing land and that it would be premature to grant planning permission for the development of the appeal site in advance of the adoption of the [Site Allocations DPD]."
"20. The appeal site is bounded to the east by a stream, beyond which is a public footpath that runs along the embankment of a disused railway line and currently marks the edge of the built up area of the village. To the south is a strip of open land lying between the site and [Sacheverell] Way. The northern boundary is formed by a stream, beyond which is a terrace of three houses, known as Brookvale Cottages. To the west is the road linking Ratby and Groby, a large single house, Ashdale, and the Groby Village cemetery. A public footpath runs between the cemetery and the appeal site.
21. In purely physical terms the proposed development would reduce the gap between Ratby and Groby. Although the site adjoins an extensive area of suburban housing, this is effectively screened by the railway embankment, which forms a logical boundary to the built up area. The Appellants point out, with reference to the 2011 appeal decision, that openness for its own sake is not one of the four objectives of the Green Wedge. However, the character of the land in question clearly has a bearing on its contribution to those objectives. The appeal site has an open and rural character while the cemetery and nearby school playing fields, though less rural in character, also have an open aspect that helps to emphasise the separation of the two villages.
22. The Appellants draw attention to the fact that the public do not have a right of access onto the site and say that it can not, therefore, have any recreational value. I see no reason, however, to restrict the definition of recreation to sporting or other activities taking place on the land itself. Recreation can also include walking and general enjoyment of the countryside. There are well used public footpaths along two of the site boundaries and the site provides an attractive complement to their use. In my view the site is, in that respect, a valuable informal recreation resource, the importance of which is enhanced by its proximity to the built up area."
"29. Having regard to all of the above, I consider that the appeal proposal would harm the character and appearance of the Green Wedge and would conflict with Policy 9 of the 2009 Core Strategy. While taking account of the possible changes to the Green Wedge boundary resulting from consideration of the [Site Allocations DPD], I concur with the Council's view that the appeal proposal is premature. I do not accept that the housing supply situation is such as to require the granting of planning permission on this site in advance of decisions on the draft [Site Allocations DPD] and the Green Wedge Review, both of which are well advanced. To do so would effectively pre-empt those decisions, overriding the public consultation process and contravening the aims of the NPPF.
30. For the reasons given above and having regard to all other matters raised, I conclude that the appeal should be dismissed."
The issues for the court
(1) whether the inspector either failed to apply or to explain how he had applied to Bloor's proposal the principles of government policy in paragraph 14 of the NPPF for decision-making where the development plan is "absent" or "silent" (ground 1 of the application);
(2) whether the inspector failed to understand and consider the evidence and submissions presented to him by Bloor on the five-year supply of land for the development of housing, and whether the reasons he gave for his conclusion on this matter are adequate (ground 2);
(3) whether the inspector failed to apply the Government's policy on the prematurity of proposals for development, or to explain why he had not applied that policy (ground 3);
(4) whether, in reaching his conclusions on the likely effect of the proposed development on the Green Wedge, and in considering the weight that ought to given to Policy 9 of the core strategy, the inspector failed to have regard to material considerations and had regard to considerations that were immaterial (ground 4); and
(5) whether the inspector failed to address Bloor's contention that the proposed development would be "sustainable development" within the meaning of government policy, that Policy 9 of the core strategy was out of date, and that there was therefore a presumption in favour of planning permission being granted under the policy in paragraphs 14 and 49 of the NPPF (ground 5).
Relevant legal principles
(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2)  1 WLR 1953, at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment  1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for  EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council  PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government  EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government  1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment  65 P. & C.R. 137, at p.145).
Issue (1) paragraph 14 of the NPPF
The NPPF sustainable development
- approving development proposals that accord with the development plan without delay; and
- where the development plan is absent, silent or relevant policies are out-of-date, granting planning permission unless:
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted."
The NPPF the plan-led system
"Crucially, Local Plans should be drawn up over an appropriate timescale, preferably a 15-year time horizon, take account of longer term requirements, and be kept up to date."
As Males J. said in Tewkesbury Borough Council v Secretary of State for Communities and Local Government  EWHC 286 (Admin) (in paragraph 13 of his judgment):
" The weight to be given to a development plan will depend on the extent to which it is up to date. A plan which is based on outdated information, or which has expired without being replaced, is likely to command relatively little weight."
"The planning system is plan-led. Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. This Framework is a material consideration in planning decisions."
Policy 8 of the core strategy
"To support the local services in Groby and ensure local people have access to a range of housing the council will:
- Allocate land for the development of a minimum of 110 new homes. Developers will be expected to demonstrate that the number, type and mix of housing proposed will meet the needs of Groby, taking into account the latest Housing Market Assessment and local housing needs surveys where they exist in line with Policy 15 and Policy 16.
Policy 9 of the core strategy
Bloor's case at the inquiry
"6.29 It is also relevant in the context of Policy 8 to consider that whilst the Core Strategy is clear over the need for housing at Groby it is silent about the location of the proposed dwellings. On that basis the development falls clearly to be considered against Paragraph 14 of the NPPF which deals with circumstances where the plan is silent and states that permission should be granted subject to the caveats that then follow. This view is also the view of the Policy officer in his response to the appeal application.";
"10.13 The proposals also accord with Policy 8 of the Core Strategy, which seeks a minimum of 110 dwellings to be allocated at Groby. The policy is silent on the specific location of this allocation. The proposals also accord with the emerging [Site Allocations DPD] which identifies the appeal site as a suitable location for part of this allocation.";
"10.16 In respect of the NPPF the proposed development falls to be considered under paragraph 49 which sets out that where there is less than a five year supply the relevant housing policies are to be considered to be out of date. In addition the development plan is silent on where the minimum 110 dwellings allocated at Groby are to be located. The development therefore also falls to be considered against Paragraph 14 and the second bullet point relating to decision making. The development accords with the requirements of this paragraph. The development also meets the three dimensions of sustainable development set out in the NPPF."
The Council's case at the inquiry
"The 2012 Regulations do not require the Council [to] identify the precise areas of land that are to be allocated in a development plan. The [core strategy] instead identifies how many houses should be directed to each settlement. Policy 9 then provides clear guidance on where proposals for housing development will or will not be acceptable. The suggestion that the plan is silent or does not contain policies on where housing should be delivered is thus untenable. It is perfectly clear that pending the completion of the [Site Allocations DPD] development ought not to be proposed on the appeal site."
Issue (2) the five-year supply of housing land
The NPPF housing need and the five-year supply of housing land
"To boost significantly the supply of housing, local planning authorities should:
- use their evidence base to ensure that their Local Plans meet the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
- to 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.
- for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target;
The footnote to the reference to "a supply of specific deliverable sites" in the first bullet point in that paragraph says this:
"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."
"Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."
"20. Accordingly, both before and after the issue of the NPPF, the need to ensure a five year supply of housing land was of significant importance. Before the NPPF the absence of such a supply would result in favourable consideration of planning applications, albeit taking account also of other matters such as the spatial vision for the area concerned. After the NPPF, if such a supply could not be demonstrated, relevant policies would be regarded as out of date, and therefore of little weight, and there would be a rebuttable presumption in favour of the grant of planning permission. All of this would have been well understood by local planning authorities. An authority which was not in a position to demonstrate a five year supply of housing land would have recognised, or ought to have recognised, that on any appeal to the Secretary of State from a refusal of permission there would be at least a real risk that an appeal would succeed and permission would be granted.
21. That is not to say, however, that the absence of a five year housing land supply would be conclusive in favour of the grant of planning permission. It may be that the NPPF, with its emphasis in paragraph 47 to the need "to boost significantly the supply of housing", placed even more importance on this factor than PPS3 had done, but whether or not that is so, in both regimes the absence of such a supply was merely one consideration required to be taken into account, albeit an important one."
The core strategy inspector's report
"3.42 The [core strategy] sets out the broad framework for development, and the detail of specific sites will be provided by the Site Allocations DPD which is due for Examination in 2010. I am satisfied that the Council's LDS demonstrates that it has put in place a process which will meet the housing land supply requirements of PPS3.
3.43 The revised trajectory shows shortfalls in housing delivery against the annual apportionment of 450pa given in the EMRP in the years 2006-2008, 2009/10, and in 2012-2017. However, those shortfalls are made good in the years post-2017/18 when the major developments in the [Sustainable Urban Extensions] come on stream fully, and the trajectory shows a surplus of dwellings by the end of the Plan period.
3.44 PPS3 requires that sufficient 'deliverable' sites are identified in the first 5 years from adoption. The revised trajectory shows a cumulative provision of [2,288] dwellings in the period 2010-2015, compared with the EMRP apportionment of [2,250] dwellings. Those sites are considered by the Council to be 'deliverable' and 'developable' in the terms set out in paragraphs 54-57 of PPS3. The submission draft therefore makes sufficient provision for the first 5-years from adoption of the [core strategy], subject to detailed allocations made in the [Site Allocations DPD].
3.45 Data held by the Council demonstrate that about 3% of extant planning permissions have expired before development takes place over the past 3 years. However, given the current uncertainties in the development market I consider that figure could rise in the next few years, and I propose to discount the small site commitments by about 10% (i.e. to 80 dwellings pa) to reflect that situation and to ensure that the [core strategy] is based on robust evidence . Consequently, the overall housing provision for the period 2010-15 would reduce to [2,258] dwellings. That figure would still provide the 5 year supply required by PPS3. Subsequent to 2014 it would be appropriate to apply a smaller discount of about 5% to any small site commitments to reflect an anticipated upturn in the housing market. A consequent revision is necessary to the Small Site Commitments shown in Table 1, which should be reduced to 400."
Bloor's case at the inquiry
"The Sedgefield approach is utilised rather than the residual approach because it seeks to ensure housing is provided as quickly as possible and it therefore accords with the views of the government as set out in the NPPF to boost significantly the supply of housing . It also accords with the view of the government in the March 2011 Ministerial Statement which refers to a "call for action on growth" and "a pressing need to ensure that the planning system does everything it can to help secure a swift return to economic growth". The approach of utilising a residual approach to dealing with the shortfall to date would in effect be compounding past under delivery directly contrary to boosting housing supply."
"Utilising the most up to date information available, the 2008 projections, and using the Chelmer model to forecast housing requirements indicates that the minimum appropriate level of house building should be 9,460 dwellings 2006 to 2026 (not including unmet need). Taking account of the shortfall in provision 2006 to 2012 of 575 dwellings gives a need to provide 2012 to 2017 2,940 dwellings or 588 per annum. When a 5% is added in accordance with the NPPF, the figure is raised to 3,087 dwellings. A 20% buffer increases the figure to 3,528 dwellings."
"The NPPF requires sites to be deliverable and achievable. Sites with permission can easily move from one period into another due to market and other constraints (such as ownership, difficulty with access, problems with land conditions etc.). Sites may have gained permission purely as a valuation exercise with no intention of being built, particularly small sites. In addition, in an adverse market there can be redesigns on sites to improve their viability. This is particularly the case at present, where there is, for example, little market for apartments and redesigns are taking place to provide different forms of housing in response to the market. Such redesigns with larger housing types with gardens will reduce density. In particular the figure for permissions includes a number of dwellings on large sites and it is considered to be quite ambitious for these to be provided in the five year period, even at a level of 50 dwellings per annum. The appellants consider therefore it is reasonable to allow for a 10% discount on sites with permission. "
"It is also important to be clear that the 10% figure here is not the same as the buffer of 5 or 20% that is brought forward from the rest of the plan period. The 10% figure relates to the inevitable difficulties in bringing all sites identified through in the time period. Sites will lapse, and viability issues will change. The buffer figure relates to the problems in under delivery in the past. In this respect it is relevant to note that in respect of using even the lowest assessment of the overall housing requirement the Authority already has a shortfall in provision from 2006 of some 437 dwellings."
The Council's case at the inquiry
"Whichever method is accepted as being correct, the Council's view is that any shortfall in the supply of housing is, in the case of the appeal site, in any event outweighed by the development plan policies, which militate against its development."
"(i) a 10 per cent discount is applied to the stock of planning permissions; and (or),
(ii) the existing shortfall in the number of completions is required to be made up over the next five years the Liverpool v Sedgefield debate;
(iii) a 20 per cent rather than a 5 per cent buffer is applied."
Mr Leader submitted that Bloor's approach to the calculation of the supply of housing land was "wrong".
"Instead, the Council discusses the number of dwellings that each consent will deliver. That having been done in the [Annual Monitoring Review] that forms the basis of the parties' assessment of the five year [housing land supply. There] is no need to guess what the discount ought to be; it might reasonably be assumed that each developer would have a good idea about the number of homes they will deliver. In the circumstances, the application of a 10 per cent discount would be to apply a double discount. That would plainly be inappropriate."
Issue (3) prematurity
Government policy on prematurity
"17. In some circumstances, it may be justifiable to refuse planning permission on grounds of prematurity where a DPD is being prepared or is under review, but it has not yet been adopted. This may be appropriate where a proposed development is so substantial, or where the cumulative effect would be so significant, that granting permission could prejudice the DPD by pre-determining decisions about the scale, location or phasing of new development which are being addressed in the policy in the DPD. A proposal for development which has an impact on only a small area would rarely come into this category. Where there is a phasing policy, it may be necessary to refuse planning permission on grounds of prematurity if the policy is to have effect.
18. Otherwise, refusal of planning permission on grounds of prematurity will not usually be justified. Planning applications should continue to be considered in the light of current policies. However, account can also be taken of policies in emerging DPDs. The weight to be attached to such policies depends upon the stage of preparation or review, increasing as successive stages are reached. For example:
- Where a DPD is at consultation stage, with no early prospect of submission for examination, then a refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question.
19. Where planning permission is refused on grounds of prematurity, the planning authority will need to demonstrate clearly how the grant of permission for the development concerned would prejudice the outcome of the DPD process."
Bloor's case at the inquiry
The Council's case at the inquiry
Issue (4) the Green Wedge
The core strategy inspector's report
The 2011 appeal decision
Bloor's case at the inquiry
The Council's case at the inquiry
"I cannot emphasise too much that such adjustments are to be made as part of the plan making process. The [Green Wedge] is not to be eroded through [ad hoc] planning applications and appeals. This is especially the case where there is an adequate supply of land for housing and a well advanced DPD that will deliver more land in the near future."
Issue (5) sustainable development
Bloor's case at the inquiry
"Policy 9 has of course to be seen in the light of Policy 8 which requires a minimum of 110 dwellings to be provided and the emerging DPD which sets the appeal site out as one of three preferred sites to meet this figure. The policy also has to be seen in the light of paragraph 49 of the NPPF which states that where there is a lack of a five year supply then policies that restrict housing supply are also to be considered to be out of date. This policy clearly seeks to restrict housing land supply and therefore this policy is covered by paragraph 49 (see the Sapcote appeal decision ). In those circumstances paragraph 14 of the NPPF sets out the presumption that permission should be granted unless certain caveats are met."
and (in paragraph 6.56):
"In essence, whilst the appeal proposals do constitute development in the [Green Wedge], [Policy 9 of the core strategy] is a policy which is supposed to accommodate and shape future development requirements. The Local Plan is now 11 years old and does not make any provision for development requirements beyond 2006. There is a clear need for additional development to take place in the District as noted in the Core Strategy and this will require the release of greenfield land adjacent to Groby to meet sustainable development requirements. ".
The Council's case at the inquiry