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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 >> Exeter City Council v Secretary of State for Communities and Local Government & Ors  EWHC 1663 (Admin) (12 June 2015)
Cite as:  EWHC 1663 (Admin)
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QUEEN'S BENCH DIVISION
PLANNING COURT IN BRISTOL
2 Redcliff Street, Bristol, BS1 6GR
B e f o r e :
| EXETER CITY COUNCIL
|- and -
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) WADDETON PARK LIMITED
(3) THE R B NELDER TRUST
Sasha Blackmore (instructed by the Government Legal Department)
for the First Defendant
Charles Banner (instructed by Stephens Scown LLP) for the Second and Third Defendants
Hearing date: 8 June 2015
Crown Copyright ©
Mr Justice Hickinbottom :
The Legal Background
i) Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a decision-maker (i.e. a local planning authority, or an inspector who conducts an appeal on behalf of the Secretary of State) must have regard to the provisions of "the development plan", as well as "any other material considerations".
ii) Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that:"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."That requires the proposed development to be in accordance with the development plan looked at as a whole, rather than with every policy in the plan, which may well pull in different directions and some of which may be more relevant to a particular application than others (R v Rochdale Metropolitan Borough Council (2001) 81 P&CR 27 at - per Sullivan J (as he then was), and R (Hampton Bishop Parish Council) v Herefordshire Council  EWCA Civ 878 at  per Richards LJ). Section 38(6) thus raises a presumption that planning decisions will be taken in accordance with the development plan, looked at as a whole; but that presumption is rebuttable by other material considerations.
iii) "Material considerations" in this context include statements of central government policy which, since 27 March 2012, has been largely set out in the National Planning Policy Framework ("the NPPF"). On 6 March 2014, the Secretary of State launched a web-based Planning Practice Guidance ("the PPG"), which replaced a plethora of earlier guidance documents and which is regularly updated. That too is a material consideration.
iv) Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decision not being irrational in the sense of Wednesbury unreasonable (Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759 at page 780F-G). The courts have consequently left such decisions to be taken by the appointed decision-maker on the basis of guidance promulgated by the Secretary of State (see, e.g., R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  UKHL 23 at  per Lord Nolan,  per Lord Hoffman and  per Lord Clyde).
v) A decision-maker must interpret policy properly. The true interpretation of such policy, including the NPPF, is a matter of law for the court (Tesco Stores Ltd v Dundee City Council  UKSC 13, and Europa Oil & Gas Limited v Secretary of State for Communities and Local Government  EWCA Civ 825 at  per Richards LJ). Where a decision-maker has misunderstood or misapplied a plan or other policy, that may found a challenge to his decision, if it is material, i.e. if his decision would or might have been different if he had properly understood and applied the policy. If it is immaterial – because the decision would inevitably have been the same absent the identified error(s), then the court has a discretion not to quash the decision (Simplex GE (Holdings Limited) v Secretary of State for the Environment (1989) P&CR 306 at pages 324-7 per Purchas LJ). Whether the interpretation of the PPG is the subject of the same objective assessment by the court is moot before this court: Mr Banner for the Developers contends that the guidance is akin to the supporting text of a development plan, which falls short of policy so that it is not to be the subject of objective interpretation by the court and its application can only be challenged on grounds of rationality (R (Cherkley Campaign Limited) v Mole Valley District Council  EWCA Civ 567 at  per Richards LJ). Mr Whale for the Council and Miss Blackmore for the Secretary of State submit that the PPG is subject to the Tesco v Dundee principles, and it is for this court to construe it as a matter of law. I deal with that issue below (see paragraph 43).
vi) An inspector's decision letter cannot be subjected to the same exegesis that might be appropriate for a statute or a deed. It must be read as a whole, and in a practical, flexible and common sense way, in the knowledge that it is addressed to the parties who will be well aware of the issues and the arguments deployed at the inspector's inquiry, so that it is not necessary to rehearse every argument but only the principal controversial issues (see Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J; South Somerset District Council v Secretary of State for the Environment  1 PLR 80 at pages 82H, 83F-G per Hoffman LJ); and South Bucks District Council v Porter (No 2)  UKHL 33 at  per Lord Brown).
vii) Although an application under section 288 is by way of statutory appeal, it is determined on traditional judicial review grounds.
viii) It is only in limited circumstances in which it can be contended that a decision-maker has erred in law by reference to a point not raised before him: an argument that an inspector failed to take into account a consideration not raised at the inquiry will only be allowed if the interests of justice require it (South Oxfordshire District Council v Secretary of State for the Environment, Transport and the Regions  2 All ER 667 at pages 677g-678d per George Bartlett QC sitting as a Deputy High Court Judge, and Humphris v Secretary of State for Communities and Local Government  EWHC 1237 (Admin) at  per Ouseley J).
ix) Because the exercise of discretion involves a series of planning judgments, in respect of which an inspector or other planning decision-maker has particular experience and expertise, "The court must be astute to ensure that such challenges are not used for what is, in truth, a rerun of the arguments on the planning merits": anyone who challenges a planning decision on Wednesbury grounds faces "a particularly daunting task" (Newsmith v Secretary of State for the Environment, Transport and the Regions  EWHC 75 (Admin) at - per Sullivan J, as he then was).
The Issues before the Inspector
i) The effect of the proposal on the landscape setting of Exeter. She considered this issue in paragraphs 12-29 of her decision letter. The Site falls within an area designated as a Landscape Setting Area within Policy LS1 of the Exeter Local Plan First Review (2005) and Policy CP16 of the Exeter City Council Core Strategy (2012). The Inspector found that the proposed development (a) was not in accordance with Policy LS1 (a blanket policy that effectively limits development to existing urban areas), but that that policy was not a criteria-based policy in terms of the NPPF and was out-of-date, so that it could be accorded little weight (paragraph 13); and (b) would not in fact harm the landscape setting of Exeter and would comply with Policy CP16 of the current Core Strategy (paragraph 29). Those findings are not challenged by the Council.
ii) The effect of the proposal on highway safety and traffic. The Inspector concluded that the proposal would not have an adverse impact on highway safety and traffic (paragraph 36).
iii) Whether in the light of the development plan, national guidance and other material considerations, the proposal would be a sustainable form of development. Within that issue, there were the following two sub-issues: (a) whether the Council could demonstrate a five year supply of deliverable housing land (which turned exclusively upon how new student accommodation was taken into account), and (b) irrespective of whether the Council could demonstrate a five year supply of housing, whether, in the light of the relevant policies – and benefits and harm of the proposal, as the Inspector found them to be – planning permission should be granted. The Claimant's grounds of challenge now focus on these issues. Briefly, the Inspector found that (a) on the evidence before her, student accommodation should not be included as part of the housing supply (paragraph 50), and the Council had not demonstrated a five year supply of housing; and (b) the proposal would be socially, environmentally and economically sustainable (paragraph 76).
iv) Whether the proposal would set a precedent for other development which could harm the character of Exeter City. The Inspector found that the proposal would not conflict with any national or local policy (except the out-of-date Policy LS1 which was of little weight), and was sustainable (paragraph 77). She concluded that the proposal should be approved "in accordance with the guidance at paragraph 14 of the NPPF"; and would not set an undesirable precedent for other development that did conflict with relevant policies (also paragraph 77).
The Grounds of Challenge
i) The Inspector proceeded on the basis that paragraph 47 of the NPPF "requires local plans to meet the full, objectively assessed needs and affordable housing in the housing market area". It does not. It requires those needs to be met only "as far as is consistent with the policies set out in the [NPPF]…".
ii) Whilst it was common ground that the housing requirement in the Core Strategy – of "at least 12,000" – did not include the need to provide housing for students, the Inspector failed to take into account the fact that the adopted housing requirement did include "an element of growth in relation to those students resident within general market housing in 2006" (paragraph 27(b) of the Claimant's Statement of Facts and Grounds).
iii) The Inspector erred in not taking into account student accommodation as part of the housing supply. Whether or not student accommodation needs form part of the housing requirement, "new" student accommodation can be included as part of the housing supply in satisfaction of the identified requirement. Nothing in either the NPPF or the PPG requires or even suggests otherwise.
"(i) Household projections: These are demographic, trend-based projections indicating the likely number and type of future households if the underlying trends and demographic assumptions are realised. They provide useful long-term trajectories, in terms of growth averages throughout the projection period. However, they are not reliable as household growth estimates for particular years: they are subject to the uncertainties inherent in demographic behaviour, and sensitive to factors (such as changing economic and social circumstances) that may affect that behaviour. Those limitations on household projections are made clear in the projections published by the Department of Communities and Local Government from time-to-time (notably, in the section headed 'Accuracy').
(ii) Full Objective Assessment of Need for Housing: This is the objectively assessed need for housing in an area, leaving aside policy considerations. It is therefore closely linked to the relevant household projection; but is not necessarily the same. An objective assessment of housing need may result in a different figure from that based on purely demographics if, e.g., the assessor considers that the household projection fails properly to take into account the effects of a major downturn (or upturn) in the economy that will affect future housing needs in an area. Nevertheless, where there are no such factors, objective assessment of need may be – and sometimes is – taken as being the same as the relevant household projection.
(iii) Housing Requirement: This is the figure which reflects, not only the assessed need for housing, but also any policy considerations that might require that figure to be manipulated to determine the actual housing target for an area. For example, built development in an area might be constrained by the extent of land which is the subject of policy protection, such as Green Belt or Areas of Outstanding Natural Beauty. Or it might be decided, as a matter of policy, to encourage or discourage particular migration reflected in demographic trends. Once these policy considerations have been applied to the figure for full objectively assessed need for housing in an area, the result is a 'policy on' figure for housing requirement. Subject to it being determined by a proper process, the housing requirement figure will be the target against which housing supply will normally be measured."
Ground 1: The Housing Requirement Ground
"The purpose of planning is sustainable growth.
Sustainable means ensuring that better lives for ourselves don't mean worse lives for future generations.
Development means growth. We must accommodate the new ways in which we will earn our living in a competitive world. We must house a rising population…".
"At the heart of the [NPPF] is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
For decision-taking this means [unless material considerations indicate otherwise]:
? 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…".
"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;
- 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."
48. Local planning authorities may make allowance for windfall sites in the five-year supply …..
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.
50. To deliver a wide choice of high quality homes, widen opportunities for home ownership and create sustainable, inclusive and mixed communities, local planning authorities should:
- plan for a mix of housing based on current and future demographic trends, Markey trends and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, serviced families and people wishing to build their own homes;
- identify the size, type, tenure and range of housing that is required in particular locations, reflecting local demand…"
"… The Council explained that although the housing requirement did not include specific provision for student housing, it projected the future housing needs of those students within market housing based on the household formation rate for their age demographic. Due to the majority of students falling within the 18-22 age group there would be relatively high household formation rate throughout the plan period. As such, the adopted housing requirement includes an element of growth in relation to those students resident within general market housing in 2006."
i) The household formation projected rate is a background rate, which does not reflect any particular increase in student population in a university city such as Exeter; and, especially, does not reflect the increase in student population in such a city as a result of known expansionist plans of the university. The objective assessment of need for housing (and thus the housing requirement) in this case did not therefore take into account the fact that, for Exeter, the unmodified housing projection figure would be inappropriate as it would not reflect the peculiar circumstances of the student population in Exeter.
ii) Before the Inspector, the Council did not attempt to calculate how that demographic trend was reflected in the housing requirement figure in quantitative terms, i.e. it did not rely upon a specific proportion of the housing requirement being attributable to student accommodation because of the demographic input.
"All student accommodation, whether it consists of communal halls of residence or self-contained dwellings, and whether or not it is on campus, can be included towards the housing requirement, based on the amount of accommodation it releases in the housing market. Notwithstanding, local authorities should take steps to avoid double counting."
"… It is debateable whether or not the new privately developed student units should be counted towards Exeter's 5 year housing land supply. Clusters of self-contained accommodation, perhaps with individual studio units and a shared kitchen, should be counted in the housing supply, whereas communal accommodation (e.g. traditional halls of residence) should not. More certainly, growing student numbers add to arguments for the plan to provide sufficient new land for housing for the 5 years and secure the maximum housebuilding for the full plan period."
i) The new evidence of Mr Short is controversial. If it is admitted, the Developers seek to rely upon further evidence of David Seaton (a planning consultant instructed in their behalf), in the form of a statement dated 19 May 2015.
ii) In any event, it is much too late for this evidence to be deployed. Before the Inspector, as I have described, the Council did not rely upon a particular proportion of the housing requirement being attributable to student accommodation, and there was no evidence before the Inspector from which she could have assessed that attribution. It cannot be said that she erred in law in not making the attribution; and it is not arguably in the interests of justice to allow the Council to take this new point now.
iii) In any event, even if the Council were able to show that a specific proportion of the adopted housing requirement figure was attributable to student accommodation, for the reasons given below, that would not be determinative of this application.
Ground 2: The Unlawful Adoption of Tests for Inclusion of Student Accommodation in the Housing Supply
"Where student population is relatively stable, and the number of general market dwellings occupied by students declines as a consequence of the provision of student accommodation, I consider the inclusion of such accommodation as part of the housing supply would be consistent with the guidance within the PPG. However, within Exeter, due to the considerable increase in the number of students relative to the provision of purpose-built student accommodation, there ahs not been a reduction in the number of general market dwellings occupied by students. On the contrary, there has been a significant increase…".
"27. Many of our university towns and cities purpose built accommodation provides affordable housing for students. Local authorities are rewarded through the New Homes Bonus for the provision of such accommodation, and planning guidance already allows them to count the provision of all student accommodation towards meeting their local housing requirement.
28. Student housing provided by individual private landlords is a low-cost form of housing. Therefore encouraging more dedicated student accommodation will help free up low-cost properties in the private rented sector and help address problems associated with the cheaper end of the private housing market and with homes in multiple occupation…".
Mr Whale submits that paragraph 27 supports his view that paragraph 3.38 of the PPG permits all student accommodation to be counted as against an adopted housing requirement.
i) The Consultation document was not before the Inspector: indeed, it post-dates her decision.
ii) It also post-dates the NPPF and PPG, and so cannot be used in interpreting those documents, in particular paragraph 3.38 of the PPG.
iii) But in any event the passage relied upon is consistent with the interpretation of paragraph 3.38 I prefer: paragraph 3.38 does allow authorities to include student accommodation towards meeting their housing requirement, e.g. by releasing accommodation into the private sector, where that is justified on the evidence. Indeed paragraph 28 of the consultation document strongly suggests that that is what is being referred to in paragraph 27.
i) The proposed development undoubtedly had planning benefits: as the Inspector said (at paragraph 75 of her decision latter), whatever the position with regard to land supply, it created "much needed" housing including 35% social housing and supported growth generally; it benefited the local community by providing pedestrian links through the site, a linear park, a playground and a surface water mitigation scheme; and it provided the short-term economic benefits of construction.
ii) The Inspector found that the proposal was in accordance with all relevant policies, except Policy LS1. Furthermore, it caused no landscape setting, highway safety and traffic, or other harm. The only planning detriment was therefore the breach of Policy LS1. However, that policy was out-of-date, and not criteria-based; and could therefore only be given little weight. The policy concerned landscape setting, and the Inspector expressly found that (a) the proposal would in fact cause no harm to landscape setting, and (b) the proposal complied with the current Core Strategy Policy CS16 on landscape setting (paragraph 29).
iii) The Inspector found that there was no five year supply of housing, and thus the relevant polices for supply were deemed out-of-date by paragraph 49 of the NPPF, with the result that the presumption in favour of development in the second bullet point in paragraph 14 of the NPPF applied.
iv) However, if she had not found an absence of five year supply, she would nevertheless have had to have balanced the benefits of the proposal against the harm. The only harm was the breach of Policy LS1, buta) Policy LS1 was out-of-date, thus arguably triggering the presumption in the second bullet point of paragraph 14 in any event.b) If she had considered the issue, she could only have concluded that that breach of Policy LS1 did not mean that there had not been compliance with the development plan as a whole. She would therefore have been required by the first bullet point of paragraph 14 to have approved the proposal.c) In any event, even if neither a) nor b) applied, the Inspector found the proposed development to be sustainable, so that there would be a presumption in favour of development. On the basis of her uncontested findings, the Inspector could not have concluded that the harm (of the technical breach of Policy LS1) outweighed the benefits of the development. Indeed, those benefits patently outweighed that "harm" by a very considerable margin.
v) Therefore, even if the Inspector did err in law as the Claimant contends, it was immaterial: had she have not have so erred, she would in any event have been bound to have come to the same conclusion, and granted the appeal by granting the planning permission sought.