Grand Union Investments Ltd v Dacorum Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 12 June 2014 |
| Neutral Citation | [2014] EWHC 1894 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/16628/2013 |
| Date | 12 June 2014 |
[2014] EWHC 1894 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/16628/2013
Mr Christopher Katkowski Q.C. and Mr Robert Walton (instructed by Paul Winter & Co.) for the Claimant
Mr Martin Kingston Q.C. and Ms Jenny Wigley (instructed by Attwaters Jameson Hill) for the Defendant
Hearing dates: 26 and 27 March 2014
Introduction
Can a local planning authority lawfully adopt its core strategy without first having assessed the full housing needs of its area and having considered whether those needs can be met, but committing itself to an early review in which that work will be done? That question arises in this case.
By an application under section 113 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), the claimant, Grand Union Investments Limited ("Grand Union"), challenges the core strategy adopted by the defendant, Dacorum Borough Council ("the Council"), in September 2013.
Grand Union objected to the draft core strategy, seeking the allocation of its site of 35 hectares to the south of Berkhamsted for housing development. The Council resisted that proposal and others like it. But in November 2012 the inspector who had conducted the examination of the draft core strategy, Mr David Hogger, warned the Council that he was unlikely to be able to recommend its adoption unless it was modified. In his view the Council had failed to demonstrate that it had identified the "full objectively assessed housing need" in the borough and that the need for housing in the plan period could not be more fully met than it intended. Having considered what the inspector had said, the Council decided not to go ahead with the core strategy in its submitted form. But it did not abandon or suspend the process. It chose another option suggested by the inspector, which was to promote a modification to the core strategy under section 20(7C) of the 2004 Act—Main Modification 28—committing itself to an early partial review. This approach was supported by the inspector in his report to the Council in July 2013, and was reflected in the adopted core strategy. The Council says it was lawful and in the circumstances entirely reasonable; Grand Union says it was not.
The issues
There are two main issues:
(1) whether, in the light of relevant government policy in the National Planning Policy Framework ("the NPPF"), it was irrational for the inspector to advise, and for the Council to conclude, that the core strategy could properly be adopted in its modified form (ground 1 of the application); and
(2) whether it was irrational for the Council to conclude, in its Dacorum Core Strategy Post-Examination Stage Sustainability Appraisal Report Addendum of January 2013 ("the January 2013 sustainability appraisal report addendum"), that Main Modification 28 had no relevant implications, and whether, under the regime for strategic environmental assessment ("SEA"), it was obliged to assess reasonable alternatives to the early partial review promised in Main Modification 28 (ground 2).
The pre-submission draft core strategy
The Council published its pre-submission draft core strategy in October 2011. The plan period was 25 years, running from 2006 to 2031. Policy CS17, "New Housing", provided for 10,750 new dwellings to be developed in the borough over the plan period, at an average of "430 net additional dwellings" each year. Policy CS19, "Affordable Housing", stated that "35% of the new dwellings should be affordable homes". The total number of new dwellings envisaged for the plan period was 11,320 (including windfalls). Hemel Hempstead would "continue to be the focus for higher levels of growth". Development in the other towns and larger villages would be "geared towards meeting their locally generated needs". There would not be enough previously developed land in urban areas to "maintain a sufficient and steady supply of housing over the lifetime of the plan". Some undeveloped land in the urban areas would have to be developed and extensions of some settlements were planned. These local allocations would "require small-scale changes to the Green Belt boundary".
At the same time the Council published its Dacorum Local Development Framework Core Strategy—Pre-Submission Sustainability Appraisal Report, dated September 2011 ("the September 2011 sustainability report addendum").This assessed the Council's proposed strategy for housing development. It also compared that strategy with an alternative approachbased on the Office of National Statistics ("ONS") 2008 projection of 13,450 new homes over 25 years, equivalent to the provision of 538 dwellings a year. To plan for that larger number of dwellings would "result in the need for additional development on greenfield sites in the [Green Belt] over Policy CS17, with associated adverse effects on many of the environmental objectives". In particular, there would be "a significant adverse effect against the [sustainability appraisal] objective for landscape and townscape", and "increased waste, increased emissions to air and increased loss of tranquillity". The "increased landtake" would also increase "the potential for adverse effects on local biodiversity and archaeology …". The "higher levels of new dwellings could go further towards supporting the planned job expansion in Maylands as well as the regeneration of Hemel Hempstead". They would "result in greater provision of affordable housing than Policy CS17". And they would "help to maintain viability of existing services whilst also encouraging the provision of new and expanded facilities". But the "imbalance between new homes and new jobs could … create issues relating to an under supply of jobs which may result in an increased need to commute out of the Borough for jobs". This level of growth could result in a larger number of new dwellings being provided in the villages and countryside of the borough, but this would depend upon "policy decisions" on the distribution of development.
In December 2011 Grand Union's planning consultants, Savills, responded on its behalf to consultation on the draft core strategy. They argued that in the light of the 2008 household projections the core strategy should provide an annual target of 530 additional dwellings, and that the Council's planned provision of 11,320 dwellings in the plan period would fail to meet the borough's housing needs.
The examination
On 22 June 2012 the Council submitted the draft core strategy to the Secretary of State for independent examination, with the Dacorum Local Development Framework Core Strategy—Submission Stage Sustainability Appraisal Report Addendum ("the June 2012 sustainability appraisal report addendum"). The examination hearings were held by the inspector between 9 and 18 October 2012.
Savills submitted representations for Grand Union. In the light of the ONS revised sub-national population projections of March 2012 and 2011 Census data, published in July 2012, they now argued that the core strategy should provide for the development of 563 dwellings a year, and a total of 14,080 for the plan period.
At the examination the Council acknowledged that its housing target of 11,320 dwellings for the plan period "would not satisfy recent household projections (c.13,500 homes—CLG 2008 based household projections)", and would not be "sufficient to deliver … levels of housing needs identified in the Strategic Housing Market Assessment … and subsequent local housing needs assessments". But in his closing submissions the Council's advocate, Mr Robert Jameson, invited the inspector to confirm the figure of 11,320 dwellings "as a sound assessment of full objectively assessed needs". If the Council had planned for the higher level of 500 or 538 dwellings a year, "it would have gone beyond objectively assessed need and into the realms of meeting unconstrained demand and would at that level also be causing unacceptable impact on policies which the NPPF affords protection such as Green Belt and AONB".
The inspector's preliminary findings
The inspector produced his preliminary findings on 19 November 2012. He said he saw "a shortcoming in the document, relating to soundness" (paragraph 1). The Council should have started by identifying the " full 'objectively assessed needs' (paragraph 47 of [the] NPPF)". The most recent "CLG household projections" indicated a need for 13,500 new households in the borough, which equated to about 540 dwellings a year over the plan period, and there was also a significant need for affordable housing (paragraph 3). Having identified the full need, the Council should then have established "whether or not that full need for market and affordable housing could be met, remembering that the objective is to 'boost significantly the supply of housing'". If the Council had done this it might have reached similar conclusions to those reflected in the draft core strategy. But without a more thorough analysis the inspector could not be sure of that (paragraph 4). He said he had two specific concerns: "the lack of a robust and comprehensive [Green Belt] review and the limited emphasis that appears to have been given to the role that neighbouring local planning authorities could play in accommodating some of Dacorum's housing needs" (paragraph 5).
Having expanded on those concerns, the inspector summarized his preliminary conclusions in this way:
"In summary there is insufficient substantive evidence to enable me to confidently conclude firstly that the figure of 11,320 dwellings represents full objectively assessed need; secondly that the housing needs of Dacorum up to 2031 could not be met more fully...
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