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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shropshire Council v Secretary of State for Communities and Local Government & Anor  EWHC 2733 (Admin) (02 November 2016)
Cite as:  EWHC 2733 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| SHROPSHIRE COUNCIL
|- and -
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) BDW TRADING LIMITED
TRADING AS DAVID WILSON HOMES (MERCIA)
|(1) MAGNUS CHARLES MOWAT
(2) MARTIN JOHN MOWAT
Thea Osmund-Smith (instructed by Humphries Kirk LLP) for the First and Second Interested Parties
The First and Second Defendants did not appear and were not represented
Hearing date: 20 October 2016
Crown Copyright ©
Mrs Justice Lang:
"34. It is therefore clear that there is no recent evidence in line with the above requirements of the Framework and the PPG that offers any reliable support to the CS housing requirement, which is, in my view out-of-date being based on the RSS. Further, the Council accept that it is not suggested that the CS housing requirement will be the FOAN for their plan review and that the evidence will ultimately tell what their FOAN is. This confirms that the Council are not at the current time sure what its FOAN is and that this work is yet to be undertaken. In such circumstances, I consider that if the Council does not have a FOAN, then it does not have a robust housing requirement and therefore it must follow that it cannot demonstrate it has a five year housing land supply…"
"45. ….I consider that the CS housing requirement is out-of-date and the Council does not have a FOAN. Therefore, the Council does not have a robust housing requirement, in line with the requirements of the Framework and the PPG. Consequently, it follows that the Council cannot demonstrate a five year housing land supply and its policies that relate to the supply of housing are out-of-date….Paragraph 49 of the Framework states that relevant policies for the supply of housing should not be considered up-to-date if the local planning authority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. Furthermore, Paragraph 14 of the Framework is engaged, which sets out that permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole."
"61. On balance, I consider that the identified adverse impacts of the scheme and the associated development plan conflict are not sufficient to significantly and demonstrably outweigh the substantial benefits of the proposal. As a result, I conclude that the proposal represents sustainable development as set out in the Framework, when read as a whole. Consequently there are material considerations that outweigh the identified development plan conflict. This is particularly bearing in mind that the Council cannot demonstrate a five year housing land supply and the associated implication that have been discussed in the above sections."
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision.
"47. 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;
"49. 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."
"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 the Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted."
"What is the starting point for the five-year housing supply?
The National Planning Policy Framework sets out that 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. Therefore local planning authorities should have an identified five-year housing supply at all points during the plan period. Housing requirement figures in up-to-date adopted Local Plans should be used as the starting point for calculating the five year supply. Considerable weight should be given to the housing requirement figures in adopted Local Plans, which have successfully passed through the examination process, unless significant new evidence comes to light. It should be borne in mind that evidence which dates back several years, such as that drawn from revoked regional strategies, may not adequately reflect current needs.
Where evidence in Local Plans has become outdated and policies in emerging plans are not yet capable of carrying sufficient weight, information provided in the latest full assessment of housing needs should be considered. But the weight given to these assessments should take account of the fact they have not been tested or moderated against relevant constraints. Where there is no robust recent assessment of full housing needs, the household projections published by the Department for Communities and Local Government should be used as the starting point, but the weight given to these should take account of the fact that they have not been tested (which could evidence a different housing requirement to the projection, for example because past events that affect the projection are unlikely to occur again or because of market signals) or moderated against relevant constraints (for example environmental or infrastructure)."
i) the housing requirement in the 2011 Core Strategy was out-of-date, being based upon 2006 data and the revoked West Midlands Regional Spatial Strategy ("RSS");
ii) the Strategic Housing Market Assessment ('SHMA') and its updates did not take into account market signals and employment trends and so their support for the housing requirement in the Core Strategy was not sufficiently robust, and did not determine the FOAN;
iii) the Department of Communities and Local Government ("DCLG") Household Projections 2012, which lent support to the housing requirement in the Core Strategy, had to be approached with caution as the 2012 projections have been criticised for under-estimating population figures because of recessionary trends.
"34 The first ground of challenge is that the Inspector erred in law in finding that the housing land requirement for the district over the 20-year period 2008–2028 was 11,000–12,000 homes. As Mr Maurici QC for the Secretary of State submitted (see his skeleton argument, paragraph 40), this was characterised in a variety of ways in the Claimant's skeleton argument; but, at the hearing before me, Mr Cairnes focused on the submission that the Inspector effectively usurped the role of the Council by determining the housing requirement for the relevant period. His finding that the requirement was 11,000–12,000, and the inevitable consequence that there was a shortfall against that figure, meant that there was a presumption in favour of permitting the development, against which he weighed the adverse environmental and economic impacts which the Council regarded so highly. In the result, the housing requirement finding effectively determined the application – and, worse, he submitted, the Council has had no alternative but (a) to accept that it cannot demonstrate a five-year housing supply in subsequent applications and appeals ("to contend otherwise would inevitably result in an adverse award of costs on such an issue", he submitted: skeleton argument, footnote 48), and (b) to adopt the figure found by the Inspector as the housing requirement for the purposes of its own future plan.
37 Of course, an assessment of future housing requirements is essential for the purposes of the development plan. But, equally, the housing requirement position must be considered when a planning application is made for housing development. First, such consideration is required by NPPF paragraphs 47-49, because, if the supply is less than five years plus buffer, then that favours grant for the reasons given above (see paragraphs 11-12): there is a presumption in favour of granting permission. Second, in the case of Stratford-upon-Avon, at the relevant time the development plan required consideration of housing supply on an application for housing development because, under the Local Plan Review (which formed part of the development plan), release of greenfield land such as the Site was triggered by unmet need for housing land. Unmet housing need is a product of housing requirement and supply (see paragraphs 18-20 above).
38 There is therefore no doubt that, in the exercise of considering the issues he identified for the purposes of the inquiry, the Inspector had to determine the housing supply issue. Unsurprisingly, it was the second issue in his list in paragraph 476 of his report (see paragraph 7 above), and the parties addressed him on that issue at some length (those arguments being summarised by the Inspector in paragraphs 80-90 and 191–192 respectively in his report). Indeed, Mr Cairnes accepts as much in his skeleton argument (at paragraphs 4.4 and 4.6):
"The first issue for determination was whether the circumstances had arisen whereby the release of the Site was justified pursuant to those saved development plan policies due to significant unmet need for housing within the district… The question of unmet need is necessarily dependent upon an assessment of the Council's housing land supply against its requirement…"
That necessarily meant determining what the housing requirements and supply were at the time of his report.
39 However, in coming to that necessary assessment in the context of a specific planning application/appeal, the Inspector was of course not binding the Council as to the relevant housing requirement so far as the development plan (now, in the form of the Council's Core Strategy) was concerned. Indeed, the Inspector made it clear that he understood the Council's role in considering housing supply in the context of the Core Strategy, and was not seeking to assume that role. He well-appreciated that:
"Weighing the options with their differing environmental, economic and social implications for the District is a matter for the Council to consider through the emerging Local Plan" (Inspector's Report, paragraph 491).
40 On the part of the Inspector, these were not merely empty words; because he also made clear that he came to his assessment of housing need on the basis of the evidence before him – and, particularly, the absence of evidence before him as to if and where the displaced demand would be taken up (see paragraph 43(iv) below). This was also stressed by the Secretary of State in his decision letter:
"For the reasons given by the Inspector on the information currently before him , he considers that the figure of 11,000–12,000 dwellings for the period 2008–2028 more closely accords with the requirements of the [NPPF]" (paragraph 14: emphasis added).
42 Equally, in deciding on the housing requirement for the district on the evidence before him and for the purposes of the particular planning application he was considering, the Inspector was not seeking to (and did not in fact) bind the Council, or another inspector or the Secretary of State, as to the housing requirement figure in other applications or appeals. The relevant housing requirement figure in another case would depend upon a separate exercise of judgment on the basis of the evidence available in that other case, at the time of the relevant decision, including relevant policy documents such as the local Core Strategy at whatever stage that process had reached.
43 Having, rightly, taken the view that he had to assess the housing requirement to enable him properly to determine the appeal in accordance with both the NPPF and the development plan (which still included the saved parts of the Local Plan Review), the Inspector's approach to determining that figure is unimpeachable, for these reasons.
i) The determination of the housing supply involves planning judgment, and the discretion of the Inspector in exercising that judgment was wide.
ii) Mr Cairnes criticises the Inspector for not grappling with the figure for housing supply which the Council favoured, namely 8,000. However, he did deal with that figure, in terms. In paragraph 491 of his report, he said: "… [The] Hearn study is clear that the lower option is based on an approach of restraint and requires 'displaced demand', with implications for neighbouring authorities, to be addressed… There is no apparent evidence base dealing with this in support of the Core Strategy. The 8,000 figure has yet to be tested through the Core Strategy examination process. The weight to be given to the emerging Plan is dealt with below… but at this stage the adoption of the restraint figure in itself carries limited weight."
44 Therefore, in summary, for the purposes of responding to the appeal, the Inspector was required to assess unmet housing need; that required him to assess housing requirements, on the basis of the evidence before him; he concluded that the figure of 8,000 preferred by the Council was not sufficiently evidence-based and that, on all the evidence before him, the requirement for the period 2008–2028 was 11,000–12,000; and he had at least adequate reason for that assessment. For the reasons I have given, that analysis and conclusion are unimpeachable as a matter of law."
"19 The question for the Inspector, applying paragraph 47 NPPF, was to identify "the full objectively assessed needs for market and affordable housing in the housing market area…". He had to make the best of an unsatisfactory situation. The RSS would be, and by the time of decision had been, revoked and was no longer part of the development plan. On the other hand, the local plan, which now constituted the development plan, was time expired, and had drawn on what was by then a very out of date basis. The new emerging strategy was the subject of objection and further examination was required. The Inspector was not willing to treat the IRHP technical papers and resolution of the Council as of themselves sufficient to demonstrate the full, objectively assessed needs. So the Inspector considered the weight to be given to the emerging JCS and to the figures in the former RSS in a search for the most up to date and objective figures. Apart from devising some sources of his own, for which he was not provided with evidence, he had to make a choice between those two unsatisfactory sources. But for all that, the debate over the figures was quite limited. The real question was whether the 616 dwellings which the developer said was a shortfall to be provided for in the current 5-year period, should be dealt with in that way, or whether it was better to cater for them over the whole period 2012–2026 and in a way, as the Council intended, which increased the provision of housing markedly at the end of the current 5-year period and then over the remaining years of the JCS to 2026.
30 In my judgment the crucial point to take from the Hunston case is how to interpret paragraph 47(i) of the NPPF, relating the requirement for a full objective assessment of housing needs in the housing market area to the subsequent qualification that that be done so far as is consistent with the policies in the Framework, before the Local Plan is produced, reconciling or balancing the two aims.
31 Before that happens through the Local Plan, the full objectively assessed housing needs of the area are not subject to the constraints of policy. Those constraints fall for consideration later on in the development control decision-making process, as the Court of Appeal pointed out; for example in a Green Belt case, the question will be whether a shortfall of housing land supply against those fully assessed needs constitutes very special circumstances so as to permit inappropriate development in the Green Belt. The question is not whether the Green Belt constrains the assessment, but whether the Green Belt constrains meeting the needs assessed. Once the Local Plan is adopted, it is the constrained needs in the Plan which are to be met.
32 A revoked RSS is not a basis for the application of a constraint policy to the assessment of housing needs, because it has been revoked and cannot be part of the Development Plan. The same would be true of an out of date Local Plan which did not set out the current full objectively assessed needs. Until the full, objectively assessed needs are qualified by the policies of an up to date Local Plan, they are the needs which go into the balance against any NPPF policies. It is at that stage that constraints or otherwise may apply. It may be problematic in its application, but that is how paragraph 47 works.
33 In principle, what is said about full objectively assessed housing needs must apply where the revoked RSS figure was based on growth projections or policies which went beyond a full objective assessment of housing needs. In practice, it may be more difficult to judge the extent to which those objectively assessed needs in the housing market include or exclude a former growth strategy in a revoked or out of date plan. But that remains a planning judgment.
34 The first question for the Inspector in this case was what was the best figure for the full objectively assessed housing needs in the housing market area. Here, there was a particular difficulty because there was no up to date local plan; indeed, except for saved policies, it had expired some six years ago. The emerging JCS suffered from sufficient weakness and uncertainty that it could not be regarded as weighty, let alone as containing the full objectively assessed housing needs figure. The Inspector had the RSS figure, objectively assessed, albeit not very up to date. He accepted it because of the view he took of the emerging JCS figure and the trajectory approach of the Council. It is not wrong in principle to use the evidence base of the revoked RSS, provided that its figures are not used to enlarge the housing requirement beyond the full assessment of housing needs. Hunston did not decide that a revoked RSS was expunged from history. It decided that the policies of a revoked RSS, and the same would be true of an out of date Plan, in the application of paragraph 47 NPPF, could not be used to affect the full objective assessment of housing needs.
35 The Council provided no evidence of the extent to which the RSS figure for South Northamptonshire had been inflated, if at all, by the former growth strategy. The Inspector did however have the evidence, referred to in paragraph 27 IR, that the difference between the RSS and JCS figures 2001–2026 was marginal, with the JCS figure being slightly higher. The now revoked growth policy, insofar as it affected the relevant parts of South Northamptonshire, had not led in fact to a larger figure for the housing needs than the non-growth based figure of the JCS. Over the current period of 5 years, absent the effect of what the Inspector regarded as a shortfall, there was no difference either. So it is difficult to see what basis the Inspector could have had for treating the RSS figure as legally irrelevant, simply because the RSS had been revoked and the underlying growth strategy no longer applied. Although there is the potential for an error of law in this respect, I am satisfied that in fact there was no error of law."
"52 The Inspector was required to identify an annual housing requirement in the District. If he failed to do so he would not have been able to identify whether the Council was able to demonstrate whether it had a five year supply of housing land. Having rejected the Core Strategy figure the Inspector explained why he favoured the figure of 833 dwellings per annum "as an appropriate point in calculating a five year housing requirement for the purposes of this appeal" (DL33)."
(v) The Inspector in determining the appeal application was obliged in this case to address the housing requirement and supply in making his judgment. This was the case in Stratford-upon-Avon DC v Secretary of State  EWHC 2074 where Hickinbottom J stated:
"Of course, an assessment of future housing requirement is essential for the purposes of the Development Plan. But, equally, the housing requirement position must be considered when a planning application is made for housing development. First, such application is required by NPPF Paragraphs 47 - 49, because, if the supply is less than 5 years plus buffer, then that favours the grant for the reasons given above (…): there is a presumption in favour of granting planning permission.""
"43 NPPF is not to be used to obstruct sensible decision making. It is there as policy guidance to be had regard to in that process, not to supplant it. Here the Inspector was presented with a Development Plan policy which was not up to date, but which nonetheless provided two ends of a range of figures in whose context a decision could properly be made. One of them (the lower figure) was argued for as the appropriate "needs" figure by DBC. This was not a case where the absence of an up to date assessment of housing needs deprived the decision maker of a context in which to consider any aspect of housing policy, whether or not it made it difficult to establish if there was a failure to identify the 5 year figure against which the available supply was to be measured. For not all issues on housing at an inquiry are the same. Thus in St Albans v Hunston, where the level of housing need was a critical factor in determining whether there was a case for release of a site from the Green Belt, it was wrong of the Inspector to have relied on an out of date plan, having regard to paragraph 47 of NPPF. In Kings Lynn etc. v SSCLG Dove J identified, rightly, that when one does assess up to date needs and arrive at a FOAN, there may be reasons why the figures emerging from the first analysis need to be boosted or reduced by reference to other planning factors, be they (for example) the recognition of the relevance of second homes in Norfolk, or the need to boost housing development in some deprived areas or the need to restrain it in areas of environmental sensitivity.
44 But here by contrast, there was a context in which the Inspector could make at least some judgements about housing supply. In a case such as this, where there is a choice of two figures relied on by the parties, both of which can be criticised, but which address both ends of the possible range, neither NPPF nor the judicial authority cited above, prevent an Inspector from reaching a judgement on the issue by asking whether, when measured against either figure, there would be a benefit in planning terms in granting permission. In this case no-one suggested that the requirement figure would be below the lower figure, so using both figures to test delivery rates was a sensible way of dealing with the issue. If this were a site where there were significant objections to development, and a real issue on whether its contribution to housing provision would be beneficial, it may be that a more thorough analysis would have been required, subject always to the actual context of the actual decision in question. That is a matter to be decided on a case by case basis. But there is nothing in either St Albans v Hunston per Sir David Keene nor in Kings Lynn v SSCLG per Dove J which prevents an Inspector from adopting a sensible and pragmatic approach of testing whether, on the lower "needs" figure, there would still be advantage in the grant of permission for housing, and especially not on a site to whose development there was no sustainable objection otherwise.
45 The alternative is that he would have had to perform some much more thorough analysis. But to derive a requirement for the plan period, so that one had an up to date figure, is a substantial exercise, best conducted in the Development Plan process. In my judgement there was nothing to prevent the Inspector approaching it in the way he did, without his embarking on an analysis of what one must do to derive a robust requirement figure: he would have had to look at census data and projections, household formation rates, average household size, migration patterns, economic performance, vacancy rates, site assessment, completion rates and all the other topics that await one when embarking on the ascertainment of a FOAN. To some, such an exercise is a sojourn in a garden of delights, but one should not underestimate its complexity and substance. Anyone ever instructed or otherwise participating at the time when Development Plan inquiries involved the examination of such topics at public inquiry will know that only too well. That is a burden to be imposed on a s.78 appeal Inspector only if unavoidable, and is truly a matter for the Development Plan process. An Inspector on appeal will not have the ability to consult all who should be consulted, and is only considering one site. If this Court interpreted NPPF paragraph 47 as requiring such an exercise in any case where there is not an up to date FOAN, it would turn many otherwise simple s.78 public inquiries on modest sites (like this 1 hectare site) into major inquiries involving a large amount of very technical evidence."