QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION UNDER s.288
OF THE TOWN AND COUNTRY PLANNING ACT, 1990
Strand, London, WC2A 2LL
B e f o r e :
| HALLAM LAND MANAGEMENT LTD
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) EASTLEIGH BOROUGH COUNCIL
Zack Simons (instructed by Government Legal Dept.) for the First Defendant
Paul Stinchcombe QC and Ned Helme
(instructed by Head of Legal Services, EBC) for the Second Defendant
Hearing date: 10 October 2017
Crown Copyright ©
Mr Justice Supperstone :
Grounds of challenge
i) For the purposes of this appeal, the Secretary of State was required to, but did not, determine the five-year housing land supply ("5YHLS") position for Eastleigh and the extent of any shortfall, as at the date of the Hamble DL (Ground 1).
ii) Alternatively, the Secretary of State failed to give any, or any adequate reasons, as to why such a determination could not be made (Ground 2).
iii) Further or alternatively, in so far as the Secretary of State made any findings at all concerning the 5YHLS position in the Hamble DL, these findings were completely inconsistent with the up-to-date findings of his Inspector in the Boorley Green appeal. The First Defendant failed to consider the findings of the Inspector in the Boorley Green IR concerning the 5YHLS position in Eastleigh, or to make any reference to this recent report in the Hamble DL (Ground 3).
iv) The Secretary of State reached conclusions in the Hamble DL concerning the weight to be given to "Local Gap" Policy 3.CO, which were irreconcilable with the Boorley Green DL, failed to have regard to the Boorley Green IR and/or were inadequately reasoned (Ground 4).
Relevant Legal Framework
- "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- where the development plan is absent, silent or relevant policies are out of date, granting permission unless: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 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."
"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."
"… since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the 'tilted balance' under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up to date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are 'significantly and demonstrably' outweighed by the adverse effects, or where ' specific policies' indicate otherwise. …"
At para 59 he continued:
"… The important question is not how to define individual policies, but whether the result is a five year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14…"
At para 61 he said:
"… No-one would naturally describe a recently approved Green Belt policy in a local plan as 'out of date', merely because the housing policies in another part of the plan fail to meet the NPPF objectives. Nor does it serve any purpose to do so, given that it is to be brought back into paragraph 14 as a specific policy under footnote 9. It is not 'out of date', but the weight to be given to it alongside other material considerations, within the balance set out by paragraph 14, remains a matter for the decision maker in accordance with ordinary principles."
The Hamble DL
"29. For the reasons given above, the Secretary of State concludes that the proposal is not in accordance with the development plan policies 1.CO and 3.CO and is not in accordance with the development plan as a whole. He has gone on to consider whether material considerations indicate that the proposal should be determined other than in accordance with the development plan.
30. The Secretary of State notes that in their letter of 23 June 2016, the Council updated their position on the supply of deliverable housing land, now claiming to be able to demonstrate 4.86 years' supply. In the absence of a five-year housing land supply, and having concluded that policies 1.CO and 3.CO are relevant policies for the supply of housing, the presumption in favour of sustainable development is engaged, meaning that permission should be granted unless any adverse impacts of doing so significantly and demonstrably outweigh the benefits.
31. He considers that the provision of market and affordable housing in an area with an acknowledged shortfall, along with care facilities in this case carries substantial weight in favour of the development. The additional population and employment opportunities would assist the economic life of the area, as would the supply of homes in an area with an acknowledged shortfall, to which he gives moderate weight. The environmental and community benefits arising out of the station improvements carry moderate weight in favour of the proposal.
32. Set against the indentified positive aspects is the environmental and social damage which would arise out of the loss of the gap between the surrounding settlements, involving the physical intrusion into an area of countryside, and contributing to the coalescence of those settlements, and loss of independent identity. The Secretary of State considers that this would be contrary to those policies of the Framework which apply the principle of recognising the different roles and character of different areas, and this carries significant weight against the proposal. He further considers that the loss of 'best and most versatile' agricultural land carries moderate weight against the proposal.
33. The Secretary of State also considers that the appeal site performs a function which is specific to its location and which would be permanently undermined by the development.
34. The Secretary of State considers overall that the adverse impacts of the proposal would significantly and demonstrably outweigh its benefits.
35. The Secretary of State has taken into account the wide range of judgments and appeal decisions referred to in the inquiry and the post-inquiry representations but, having considered all the matters raised, he concludes that none is of such weight as to alter the balance of his conclusions.
36. Overall he concludes that there are no material considerations which indicate that he should determine the case other than in accordance with the development plan. The Secretary of State therefore concludes that your client's appeal should be dismissed."
The parties' submissions and discussion
Ground 1: the Secretary of State failed to determine the 5YHLS position at the time of the Hamble DL
"…Paragraph 14 of the NPPF prescribes an approach to decision-making when relevant policies, including '[relevant] policies for the supply of housing', are 'out of date'. It does not, however, prescribe the weight to be given to the ability of a particular proposal to reduce a shortfall in housing land supply as a benefit to be put in the balance against 'any other adverse effects'. This is a matter for the decision maker to judge, and the court will not interfere with that judgment except on Wednesbury grounds. Naturally, the weight given to a proposal's benefit in increasing the supply of housing will vary from case to case. It will depend, for example, on the extent of the shortfall, how long the deficit is likely to persist, what steps the authority could readily take to reduce it, and how much of it the development would meet. So the decision-maker must establish not only whether there is a shortfall but also how big it is, and how significant …".
"In my judgment, in the instant case, the Inspector was required to make judgments, based on the evidence, as to the Claimant's current FOAN or housing requirements and its housing supply in order to decide the issues in the appeal. As this was an application for a medium-sized housing development which was not in accordance with the Development Plan, the Inspector had to consider whether other material considerations indicated that planning permission should be granted. The Claimant's level of housing need and supply was a material consideration, as reflected in the NPPF. The Inspector had rightly identified the Council's housing land supply and housing need as a 'main issue' in AD10. In my view, he could not properly apply NPPF49 (which has to be read together with NPPF47) and NPPF 14 without first making those judgments. I consider that NPPF49 requires the Inspector to make his own judgment on the equation between housing needs and housing supply based upon the relevant evidence provided by the local planning authority and any other party to the inquiry. I also accept the Claimant's submission that, in a case where housing needs and supply are in play, the extent of any shortfall in housing supply may well be relevant to the balancing exercise required under NPPF14: see Cheshire East Borough Council v Richborough Estates Partnership LLP  EWCA Civ 168, per Lindblom LJ at ."
"(a) an Inspector is required to make judgments as to the Claimant's current FOAN or housing requirements and its housing supply in order to decide the issues in an appeal; (b) paragraph  NPPF requires the Inspector to form his/her own judgment on the equation between housing needs and housing supply based upon the relevant evidence provided by the local planning authority and any other parties to the inquiry; (c) where a Local Plan is outdated other sources of information can and should be considered; (d) where there is no robust recent assessment of full housing needs, the household projections published by the DCLG should be used as the starting point; (e) an Inspector must do the best possible with the material adduced and if needs be the Inspector must make the best of an unsatisfactory situation, making a choice between unsatisfactory sources; (f) if an Inspector is unable to identify a specific figure a bracket or range or an approximate uplift on the departmental projections suffice; (g) an Inspector is not required to undertake the kind of detailed analysis which would be appropriate at a Development Plan Inquiry; (h) an Inspector deciding an appeal on the best evidence available is not making a finding that is an authoritative assessment which binds the local planning authority in other cases; (i) in an exceptional case where the evidence before the Inspector is so lacking that it is impossible to perform an assessment the Inspector must say so and give reasons to explain why it was not possible to determine a working FOAN figure or range."
"42.(ii) The Inspector was patently not attempting to fix the housing requirements for the borough – he did not have to assess the precise figure for either the requirement or available supply (see South Northamptonshire Council v Secretary of State for Communities and Local Government  EWHC 573 (Admin) at  per Ouseley J, and Cheshire East Council v Secretary of State for Communities and Local Government  EWHC 573 (Admin) at  per Lewis J). He was concerned with the question as to whether the Council has demonstrated a five-year supply.
48. … the Inspector was not required to identify the exact housing requirement figure if, by adopting a conservative figure, it is clear that the authority could not demonstrate a five year housing land supply…"
"It is not necessary to conduct a full analysis of requirements and supply in every case. Whether one has to do so depends on the circumstances."
"The Council acknowledge that they are not able to demonstrate more than a four-and-a-half years supply of deliverable housing land, and it is the appellant's view that the actual level is significantly less. It is not necessary for this report to carry out a detailed analysis of the housing land supply position, which is better left to the Local Plan examination, where all the evidence is available to the inspector. However, it can be said that there is a material shortfall against the five-year supply required by NPPF para 47, and that there is evidence of an existing need for affordable housing. In these circumstances, the provision of up to 225 homes, 35% of which would be affordable, would be a significant advantage arising out of the scheme."
Ground 2: the Secretary of State failed to give any, or any adequate, reasons as to why a determination of the 5YHLS position could not be made.
Ground 3: the Secretary of State failed to have regard to a material consideration and/or reached decisions which were fundamentally inconsistent with each other concerning the 5YHLS position and/or failed to take reasonable steps to acquaint himself with relevant information, namely the recent finding of the Inspector in the Boorley Green IR concerning the 5YHLS position in Eastleigh.
i) First, he submits, the principle of consistency was engaged because the Secretary of State must be assumed to have been aware of the Boorley Green IR. The Hamble IR and the Boorley Green IR were both before the Secretary of State at the same time, expressly recovered and reserved to him (in the same district) for the same reason and he must therefore be assumed to have had knowledge of both reports, regardless of whether the case officer in the Hamble matter was in fact aware of the IR in the Boorley Green matter (see Hollis v Secretary of State for the Environment and others (1984) 47 P&CR 351).
ii) Second, even if the Secretary of State was not in fact aware of the Boorley Green IR, he would still have been under a duty to take reasonable steps to acquaint himself with the Inspector's findings in that appeal (see Secretary of State for Education and Science v Tameside MBC  3 WLR 641; and Club Airlock v Secretary of State for the Environment, Transport and the Regions  EWHC Admin 700, per David Pannick QC (sitting as a deputy High Court judge), at paras 20-23). This was so, Mr Hill contends, as the Secretary of State was fully aware that the 5YHLS position in Eastleigh was central to the determination of this appeal. He suggests that it is highly unsatisfactory for two "simultaneous decisions" to reach materially different conclusions, concerning the housing supply position in the same Borough.
iii) Third, the issue is not whether the two IRs were binding upon the Secretary of State (which they were not), but whether the Boorley Green IR contained relevant and contemporaneous findings about the 5YHLS position in Eastleigh, which the Secretary of State accepted for the purposes of that appeal, and which would have been equally pertinent for the purposes of the Hamble appeal. He submits this was plainly the case.
iv) Fourth, as a matter of fairness and good administration, where two appeals were before the Secretary of State for determination at exactly the same time, concerning substantial housing developments within the same local authority area and where the policy context was materially identical, the order in which he chose to determine these appeals cannot affect the extent or nature of his duty to adopt a consistent approach to the two appeals.
"62. … although, it is for the court to determine whether a consideration is legally capable of being relevant, the general principle is that it is for the decision maker, in this case the council, to decide (a) whether to take a relevant consideration into account and, if it does so decide, (b) how far to go in obtaining information relating to that matter. Such decisions may only be challenged on the grounds that it was irrational for the authority not to take a legally relevant consideration into account or, having done so, not to obtain particular information…
63. The test is whether, in the circumstances of the case, no reasonable authority would have failed to take into account the specific consideration relied upon by the Claimant, or to obtain further information. Lord Scarman held in In Re Findlay, at p.334, that this test is satisfied where, in the circumstances, a matter is so 'obviously material' to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation 'notwithstanding the silence of the statute'…"
Ground 4: the Secretary of State reached conclusions in the Hamble DL, concerning the weight to be given to policy 3.CO, which were irreconcilable with the Boorley Green DL, failed to have regard to the Boorley Green IR and/or were inadequately reasoned.
"…will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy – such as the protection of a 'green wedge' or of a gap between settlements…"