QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Phides Estates (Overseas) Limited
| - and -
| Secretary of State for Communities and
| - and -
| Shepway District Council
| - and -
| David Plumstead
Mr Richard Moules (instructed by the Treasury Solicitor) for the First Defendant
Mr Paul Brown Q.C. (instructed by Richard Buxton) for the Third Defendant
Hearing date: 17 February 2015
Crown Copyright ©
Mr Justice Lindblom:
The issues for the court
(1) whether the inspector misunderstood and misapplied Policy SS2 of the Shepway Core Strategy, adopted by the council in 2013, and thus failed to identify the relevant "housing requirements" under paragraph 47 of the National Planning Policy Framework ("the NPPF"), or at least failed to provide intelligible and adequate reasons for her conclusions (ground 1); and
(2) whether the inspector failed to identify the "relevant policies for the supply of housing" within paragraph 49 of the NPPF, or reached inconsistent conclusions on that matter, or in any event failed to provide lawful reasons for those conclusions (ground 2).
"The proposed development, being located outside the village confines of the Lympne settlement boundary, and being of such a size, scale and impact, which is disproportionate with the settlement hierarchy, status and identified strategic role and needs of Lympne and which fails to promote the good design and distinctiveness of Lympne, is contrary to policies DSD, SS1, SS2, SS3, CSD1, CSD2 and CSD3 of the adopted Shepway Core Strategy Local Plan 2013, saved policies CO1 and HO1 of the Shepway District Local Plan Review 2006 and [the NPPF], principally paragraphs 12, 17, 49 and 70, all of which require plan-making and decision-taking to be plan-led with development proportionate and consistent with the settlement's status and identified strategic role, which deliver the social, recreational and cultural facilities and services the community needs."
There were two further reasons for refusal, but they were later abandoned.
Development plan policy
"The delivery of a minimum of 350 dwellings per annum under policy SS2 remains achievable and meets the provisions contained within paragraph 47 of the NPPF."
"Indeed, a significantly higher rate of housing development would be at odds with the evidence that is available about development deliverability. The annual housing target set by policy SS2 is greater than recent building rates – a minimum requirement of 350 dwellings per year compared to a six year average completion rate of some 270 dwellings per year (2006/7 to 2011/12). However, it is in line with delivery rates over a longer term period and does not appear to be unduly constrained by housing land supply …";
and in paragraph 53 this:
"In the longer term, the evidence suggests that land is available to meet the CS's stated housing requirement. As described elsewhere, the Council's modifications include the deletion of the Folkestone Racecourse allocation …, reducing planned housing supply by some 820 dwellings. However, the updated (2012) Housing Evidence paper shows that supply remains in excess of the long term minimum target to 2030/31."
"The core long-term objective is to ensure the delivery of a minimum of 350 dwellings (Class C3) per annum on average until 2030/31 (inclusive from 2006/7). This is an achievable rate and can address strategic needs. To promote sustainable development and prioritise urban regeneration, a target is set for at least 65% of dwellings to be provided on previously developed ('brownfield') land by the end of 2030/31.
To support housing delivery, a target is set to provide for approximately 8,000 dwellings by the end of 2025/26. This equates to an initial target average delivery of 400 dwellings per annum. This trajectory is set out to provide impetus to the transformation of the district's economy sought in the district spatial strategy, and to promote a good rate of delivery of new employment land and infrastructure.
Allied to this rate of housing delivery, business activity and the provision of jobs will be facilitated through supporting town centres, the protection of sufficient employment land across the district, allocations and concerted efforts to deliver rural regeneration (especially in south and west Shepway).
A balance of development will be secured, as follows …".
The policy continues with Table 4.1. This is divided into three columns, headed "Use", "Target amount of additional development 2006/7 to 2025/26 (inclusive)" and "Delivery over plan period". The column headed "Use" specifies the relevant use as "Housing (Class C3)". The column headed "Target amount of additional development 2006/7 to 2025/26 (inclusive)" contains this reference to a target:
"Target approximately 8,000 (minimum 7,000) dwellings".
The column headed "Delivery over plan period" indicates the council's approach:
"How/when: In accordance with provisions set out in this policy, a rolling requirement is set that deliverable land for 1,750 dwellings and a sufficient buffer be continuously identified for the forthcoming five-year period. Completions total 1,621 dwellings in the first six years of plan period."
"To boost significantly the supply of housing, local planning authorities should:
- use their evidence base to ensure that their Local Plan meets 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;
- 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;
- identify a supply of specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15;
- 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; and
- set out their own approach to housing density to reflect local circumstances."
That policy is amplified in paragraphs 17 and 157 to 159. Paragraph 49 states:
"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."
Paragraph 14 explains the "presumption in favour of sustainable development". In the context of "plan-making" it says that local plans "should meet objectively assessed needs …". For "decision-taking", it says that the presumption means:
- 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 permission unless:
- any adverse effects 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 inspector's decision letter
"In terms of the North Downs area where the appeal site is located, Policy SS1 seeks to steer development outside the Area of Outstanding Natural Beauty (the AONB) to places that would not materially impact on its setting. It also seeks to consolidate the growth of the service centre of Hawkinge and to sensitively meet the needs of communities in the AONB at better served settlements. Policy SS3 sets out a sustainable development strategy with the scale and impact of development to be proportionate and consistent with the status and strategic role of the settlement in question. Table 4.3 shows Lympne as a Primary Village which will be expected to contribute to strategic aims and local needs. The Primary Villages are said to have potential to grow. Elsewhere in the CS reference is made to "one other developable potential site" within Lympne Parish. This appears to be a reference to the former airfield land insofar as it was identified in the 2011 Strategic Housing Land Availability Assessment (the SHLAA)."
"9. The first matter to consider is how many houses the Council actually requires to meet its objectively assessed needs. The starting point is Policy SS2 in the recently adopted CS. The first two paragraphs indicate that whilst a minimum of 350 dwellings a year would be required over the plan period to 2031, there should be an accelerated delivery of about 8,000 dwellings by 2026. This would equate to an initial target average of 400 dwellings a year. The supporting text explains that this would address demographic evidence such as the ageing population, decline in local labour supply and increasing formation of smaller households. Indeed the provision of housing to address long term economic development is one of the aims arising out of Strategic Need A, which Policy SS2 seeks to address.
10. Table 4.1, which is also part of the policy, sets out a target of approximately 8,000 dwellings to 2026, with a minimum of 7,000 dwellings during this period. The third column of the table refers to delivery "over the plan period", which presumably means to 2031. However it also refers to a rolling requirement of 1,750 dwellings to be continuously identified "for the forthcoming five-year period". It seems to me that the policy is not set out in the clearest terms and there was considerable debate at the Inquiry about whether the 5 year requirement should be 350 or 400 dwellings a year. I have carefully considered the matter, taking account of the evidence base and the CS Inspector's Report. My conclusion, on a straightforward reading of the policy as a whole, is that the requirement is for at least 1,750 dwellings over the next 5 years but that every effort should be made to achieve a higher target of around 400 dwellings a year in the first 20 years of the plan."
"The Council will be aware that it needs to be pro-active in encouraging expeditious delivery of its strategic sites. From the evidence I consider that there is a good prospect that the programme anticipated in the AMR is generally realistic although I am less optimistic about the future of some of the SHLAA sites in the short term. In my opinion the Council has sufficient deliverable sites for about 2,192 dwellings, including one year's windfall allowance. This would equate to a supply of about 4.6 years."
"Where a local planning authority is unable to demonstrate a five-year supply of deliverable sites, Paragraph 49 of the Framework indicates that relevant policies for the supply of housing should not be considered up-to-date. Housing applications should be considered in the context of the presumption in favour of sustainable development, bearing in mind the imperative in Paragraph 47 to boost significantly the supply of housing. The provision of 250 homes, of which 30% would be affordable dwellings, would therefore be a substantial benefit that weighs in favour of the appeal development."
In paragraph 29 the inspector acknowledged that her conclusions on housing land supply would be "disappointing" for the council, especially as it had only recently adopted its core strategy. But she emphasized that her concern was to do with "short term delivery rather than … the longer term housing trajectory where the large strategic sites will increasingly play a part". The "main area of contention" had been the buffer. Her own conclusions were based on more evidence than the core strategy inspector's.
"The Council cannot demonstrate a 5 year supply of deliverable sites. In such circumstances its housing supply policies should be considered out-of-date. Saved Policy CO1 seems to me to constrain the supply of housing and is thus not current. Whilst the Appellant contends that many of the CS policies also fall within this category, I do not agree. The policies are written in such a way that it is only Policy SS1 which refers directly to settlement boundaries. However as the Appellant comments, Lympne and other Primary Villages are envisaged in the CS to accept some growth and this is unlikely to all occur within the confines of the settlement. The primary purpose of the other relevant policies is not specifically directed to housing supply. For example Policy SS3 concerns place shaping and sustainability; Policy CSD1 relates to balanced neighbourhoods and affordable housing; Policy CSD2 addresses housing mix and need; and Policy CSD3 includes criteria applicable to development outside the settlement hierarchy but its main objective in this respect is countryside protection. In the circumstances it seems to me a moot point as to whether any of the above policies can be considered as "housing supply policies" as referred to in Paragraph 49 of the Framework."
"59. The Framework states that housing proposals should be considered in the context of the presumption in favour of sustainable development, which is defined by economic, social and environmental dimensions and the interrelated roles that they perform. In this case the contribution of the site to the market and affordable housing requirements of the district is a matter of considerable importance. The scheme offers other advantages, including two new shop units and a doctor's surgery. There would be an enhanced bus service and the works to the A20/A261/Stone Street junction would bring forward a much needed improvement to this part of the highway network. These would all mitigate adverse impacts of the development but also convey benefits to the wider population. There is no reason why the development should not be well designed and energy efficient. There would also be large areas of open space, which again would be of benefit to the existing community and comply with the CS objective of expanding such facilities in the North Downs area.
60. However the proposal would not comply with the place shaping and sustainable settlements strategy in the newly adopted development plan. This directs development in accordance with a settlement hierarchy and Lympne has been placed near the bottom in recognition of its limited facilities, relatively modest size and compact character within the rural landscape. The CS envisages change within the North Downs area but there [is] no specific apportionment in terms of housing numbers. Villages such as Lympne clearly have to play their part to accommodate growth. However the 250 dwellings proposed is of a scale that is more redolent of development envisaged for the broad strategic locations in Sellindge or New Romney, both places being higher in the settlement hierarchy than Lympne. There is no convincing evidence that the spatial strategy in itself constrains the supply of housing or that the additional development needed to make up the 5 year deficit has to all be sited in this particular location.
61. In this case the shortfall in terms of providing a 5 year supply of deliverable sites is relatively small. Whilst the Framework does not indicate that the size of the deficit should be treated differently in terms of how development management decisions are taken, it can nonetheless be a material consideration in the overall balance.
62. Paragraph 14 of the Framework is engaged, although I note that Policy DSD in the CS include the same sustainability test. Drawing together all of the above points, I consider that there is no overriding requirement for a development of this size within this location. The appeal proposal would have serious and harmful consequences, especially in terms of the environmental dimension of sustainability. Notwithstanding the substantial benefits, my overall conclusion is that they would be significantly and demonstrably outweighed by the adverse impacts, when assessed against the policies in the Framework as a whole. In the circumstances I conclude that the appeal scheme would not be a sustainable form of development.
63. I have had regard to all other matters raised, both in the oral and written representations, but have found nothing to change my conclusion that this appeal should not succeed."
Ground 1 – Policy SS2 of the core strategy
Ground 2 – "Relevant policies for the supply of housing"