Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government (First Defendant) Hinckley and Bosworth Borough Council (Second Defendant)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Lindblom
Judgment Date19 Mar 2014
Neutral Citation[2014] EWHC 754 (Admin)
Docket NumberCase No: CO/2334/2013

[2014] EWHC 754 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Lindblom

Case No: CO/2334/2013

Between:
Bloor Homes East Midlands Limited
Claimant
and
Secretary of State for Communities and Local Government
First Defendant

and

Hinckley and Bosworth Borough Council
Second Defendant

Mr Jeremy Cahill Q.C. and Mr Satnam Choongh (instructed by Bloor Homes East Midlands Limited) for the Claimant

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

Mr Justice Lindblom

Introduction

1

Next to the cemetery in the village of Groby in Leicestershire, on the open land between Groby and the neighbouring village of Ratby, is a site that has been put forward several times for the development of housing. Every attempt so far has failed. This case is about the latest.

2

By an application made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") the claimant, Bloor Homes East Midlands Limited ("Bloor"), challenges the decision of the inspector appointed by the first defendant, the Secretary of State for Communities and Local Government ("the Secretary of State"), to dismiss its appeal against the refusal by the second defendant, Hinckley and Bosworth Borough Council ("the Council"), of its application for planning permission to build 91 houses on the site. The inspector's decision letter was issued on 22 January 2013. He had held an inquiry into Bloor's appeal in December 2012.

The inspector's decision letter

3

In paragraph 2 of his decision letter the inspector identified two main issues in the appeal. The first was "the adequacy of the supply of housing in the [borough of Hinckley and Bosworth]", and the second "the effect of the proposed development on the character and appearance of the Rothley Brook Meadow Green Wedge ["the Green Wedge"]". He also identified "a further consideration" in each of these two main issues was "the impact of the appeal proposals on the emerging Site Allocations and Generic Development Control Policies Development Plan Document ["the Site Allocations DPD"]".

4

In paragraph 3 the inspector described the site, its location and its recent planning history:

"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."

5

In paragraphs 4 to 15 of his letter the inspector considered the issue of housing supply.

6

In paragraph 4 he noted that the Hinckley and Bosworth Core Strategy ("the core strategy"), which was adopted in December 2009, envisaged that most of the housing development in the borough would be provided "in the urban area or through sustainable amendments to the settlement boundary and in two Sustainable Urban Extensions (SUEs), with a proportion distributed around rural areas in order to meet local needs". The core strategy required 9,000 homes to be provided between 2006 and 2026, at an average of 450 a year. In paragraph 5 the inspector referred to Policy 8 of the core strategy, which identified Groby as one of the Key Rural Centres, where the Council would aim to allocate land for housing. The Council and Bloor had agreed that at least 110 new dwellings would be needed in Groby, and that this would require land outside the existing settlement boundary. That land was going to be identified in the Site Allocations DPD. The consultation draft of the Site Allocations DPD referred to the appeal site as one of the preferred options.

7

The inspector then considered the Council's five-year supply of housing land:

"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."

8

The inspector then referred to the policy in the NPPF for the operation of the planning system (paragraph 12 of the decision letter) He reminded himself that paragraph 12 of the NPPF says that it does not change the statutory status of the development plan as the starting point for decision making and that development proposals in conflict with an up to date plan should be refused unless other material considerations indicate otherwise. He mentioned the principles set out for the planning system in paragraph 17 of the NPPF, one of which is that planning should be "genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area", and providing "a practical framework within which decisions on planning applications can be made with a high degree of predictability and efficiency".

9

The inspector went on to consider the Site Allocations DPD process and its bearing on the appeal before him:

"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."

10

That analysis led the inspector to his conclusion on the issue of housing supply:

"15. In conclusion I consider that the Council has an up to date development plan in the form of the 2009 Core Strategy, that...

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