Central Bedfordshire Council v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 03 July 2018 |
| Neutral Citation | [2018] EWHC 2077 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1773/2018 |
| Date | 03 July 2018 |
[2018] EWHC 2077 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Sir Ross Cranston
(Sitting as a Judge of the High Court)
CO/1773/2018
and
APPEARANCES
Ms S K Sheikh QC (instructed by LGSS) appeared on behalf of the Claimant.
THE DEFENDANT did not attend and was not represented.
Mr R Kimblin QC (instructed by Gladman Developments) appeared on behalf of the Interested Party.
This is a renewed application for permission to apply for statutory review under section 288 of the Town and Country Planning Act 1990. The application is in relation to a decision of P. W. Clarke, the Secretary of State's inspector dated 20 March this year to allow an appeal by Gladman Developments Limited, which I will call “the developer”. That decision of the inspector was to grant outline planning permission in respect of land off Mill Road, Cranfield, Bedfordshire. The development is described as comprising up to 78 residential dwellings with public open spaces, landscaping, sustainable drainage system and land for provision of a doctor's surgery. The inspector's decision followed the refusal of planning permission by Central Bedfordshire Council (“the Council”).
There are three grounds of challenge. It is convenient to consider grounds 2 and 3 at the outset. Ground 3 relates to NPPF para.14 and raises an issue as to the misapplication of the tilted balance approach set out in the fourth bullet point of that paragraph. In my view, this ground goes nowhere. DL70 makes clear that the inspector decided the appeal on an alternative basis as well as on the basis that this ground challenges. That alternative basis was a decision in the ordinary way in relation to material considerations under s.38(6) of the Planning and Compulsory Purchase Act 2004 and s.70(2) of the Town and Country Planning Act 1990. There is therefore no need to consider the issue about whether the so-called tilted balance approach applies in the case of a single development policy which is out of date.
Similarly, with ground 3, which relates to condition 5. Condition 5 addresses the number of birds the development would attract and therefore the risk of bird strike in light of the adjacent airport. Before me Ms Sheikh QC for the Council contends that the condition is flawed as relating only to what is done outside the proposed development area and not including the development area itself. In my view, as Holgate J concluded on the basis of the developer's summary grounds of resistance, condition 1 enables the matter of deterring birds from within the development area to be addressed at a later point.
That leaves Ground 1, which is headed “Housing supply”. In considering that ground it well to be reminded of the decision letter as a whole. The inspector considered five issues there: first, the character and appearance of the locality; secondly, the adequacy or otherwise of the social infrastructure; thirdly, the safe operation of the airport; fourthly, the living conditions of future residents in terms of noise; and following on from that, fifthly, what he entitled “the planning balance”.
Without quoting in detail his consideration of the issues under that fifth head, it is nonetheless necessary to refer to some specific points. At DL52 he referred to the Objectively Assessed Housing Need, the OAHN, of 1,600 dwellings per annum and then what the Council had identified as the supply of 165,164 dwellings per annum. He then said:
“If this figure is correct then there would be little disproportionate benefit arising from the housing resulting from this appeal proposal.”
The inspector then went on to consider the four points identified at DL53. As regards two of those points he found in the Council's favour, the first, the reduction of the OAHN by reference to over-supply in the previous five-year period, and the second, the application of the timing of a buffer. I need say no more about those two points.
The other issues, relevant to assessing the identified supply figure do, however, give rise to the argument the Council raises. The first issue relates to the exclusion of the unmet needs of Luton from the demand side, without a balancing exclusion from the supply side; the second, to the allowance which the inspector made for uncertainties in predicting delivery.
In relation to the first point, the Luton point, the inspector said this at DL56:
“The council's action in excluding the unmet needs of Luton from the demand side of the equation is unquestionably correct, since an OAHN is meant to be objective, excluding any elements of adjustment through policy decisions such as accommodating the unmet needs from another authority. However, a supply side of the equation which is not then adjusted to take account of land releases exceptionally justified as a matter of policy by the unmet needs of Luton, are as are some components of the Central Bedfordshire supply, produces a skewed result. I fully accept that such exceptional releases of land are not and cannot be reserved for Luton residents and are as available to meet the needs of Central Bedfordshire residents as any other but an equation which compares a ‘policy off’ objective assessment of need against a ‘policy on’ supply is an unbalanced assessment.”
At DL59 and following, the inspector dealt with the second point, predicted delivery. He noted at DL50 that information on the point was, and I use my own terminology, sketchy. He then said at DL61 that as the developer had pointed out without contradiction, the Council's method had consistently over-estimated delivery in every five-year supply forecast it had made and that over-estimate had never been less than 10 per cent.
The inspector reached the conclusion that there would be a shortfall in-housing. He reached that conclusion in two ways. First, at DL62, he found that the Council's assessment of its five-year housing need based on the OAHN, including five per cent buffer, was accurate, at about 8,257. He then stated that its assessment of housing supply needed to be adjusted downwards by a factor balancing the exclusion of Luton's needs from the equation and by a factor reflecting the uncertainty of forecasting future events. The first factor, he noted, had been put by the developer at about 7,000 dwellings and he returned to the 10 per cent over-estimate figure in relation to the discount.
“62…These two factors are likely to turn the council's expected 5-year surplus of 1,430 dwellings into a small deficit of about 200 to 250 dwellings.”
An alternative way he reached his conclusion about a shortfall was by reference to the emerging local plan. He said that that was a material consideration. It could not be taken as sound but it was nearing the point where the Council could be taken as believing it was sound. At DL64 he said that the five-year requirement based on that figure would be 9,840. Deducting the surplus would leave a requirement of 9,371 and adding the five per cent buffer would produce a figure of 10,332. He said this:
“64…The council's calculated trajectory is 9,687. The requirement includes the unmet needs of Luton and so no balancing adjustment to the supply side of the equation would be called for. But a 10 per cent reduction in expected supply to reflect the uncertainty of future predictions would still be appropriate, resulting in a figure of deliverability of 8,718 in a shortfall of 1,614 or about 300 to 350 dwellings per annum.”
At DL65, the inspector concluded that based on either approach the present shortfall in the five-year housing land supply for Central Bedfordshire can be seen to be either 40 to 50 dwellings per annum or 200 to 250 dwellings per annum.
“65…Whichever way one looks at it, the contribution from this site, up to 78 dwellings towards making good the shortfall would be of considerable social benefit.”
Then in the following...
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