Hallam Land Management Ltd v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Supperstone
Judgment Date16 November 2017
Neutral Citation[2017] EWHC 2865 (Admin)
Docket NumberCase No: CO/6439/2016
Date16 November 2017

[2017] EWHC 2865 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

IN THE MATTER OF AN APPLICATION UNDER s.288

OF THE TOWN AND COUNTRY PLANNING ACT, 1990

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Supperstone

Case No: CO/6439/2016

Between:
Hallam Land Management Ltd
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) Eastleigh Borough Council
Defendants

Thomas Hill QC and Philippa Jackson (instructed by Irwin Mitchell LLP) for the Claimant

Zack Simons (instructed by Government Legal Dept.) for the First Defendant

Paul Stinchcombe QC and Ned Helme (instructed by Head of Legal Services, EBC) for the Second Defendant

Hearing date: 10 October 2017

Mr Justice Supperstone

Introduction

1

The Claimant challenges the decision letter of the Secretary of State for Communities and Local Government ("the Secretary of State"), dated 9 November 2016 ("the Hamble DL"), whereby he dismissed an appeal against the refusal by Eastleigh Borough Council ("the Council"), dated 17 July 2014 of outline planning permission for up to 225 residential units, plus a 60-bed care home and 40 extra care units, together with the provision of public open space and woodland, improvements to Hamble Station, and associated landscaping and access on land west of Hamble Lane, Hamble, Hampshire ("the Site"), in accordance with the recommendation of his Inspector, John Chase. The Inspector's report ("the Hamble IR") was published on 26 August 2015, following an Inquiry held on 23–30 June 2015.

2

Three weeks after the Hamble DL, by a decision letter dated 30 November 2016 ("the Boorley Green DL"), the Secretary of State allowed an appeal against the refusal of planning permission by the Council for up to 680 residential units, new local care centre, land for a two-form entry primary school, open space and associated infrastructure including details of a new junction arrangement for access to the site on Land to the North West of Boorley Green, Winchester Road, Boorley Green, Eastleigh, Hampshire, in accordance with the recommendation of his Inspector, David Nicholson. The Inspector's Report ("the Boorley Green IR") was published on 25 August 2016, following an Inquiry held on 17–19 and 24–27 May 2016.

3

The two appeals related to two sites within the same local authority area (Eastleigh Borough). They both lie within the countryside (designated under Saved Policy 1.CO of the Council's adopted Local Plan, and within an area designated as Local Gap under Saved Policy 3.CO of the Local Plan).

Grounds of challenge

4

Mr Thomas Hill QC, for the Claimant, advances four grounds of challenge:

i) For the purposes of this appeal, the Secretary of State was required to, but did not, determine the five-year housing land supply ("5YHLS") position for Eastleigh and the extent of any shortfall, as at the date of the Hamble DL ( Ground 1).

ii) Alternatively, the Secretary of State failed to give any, or any adequate reasons, as to why such a determination could not be made ( Ground 2).

iii) Further or alternatively, in so far as the Secretary of State made any findings at all concerning the 5YHLS position in the Hamble DL, these findings were completely inconsistent with the up-to-date findings of his Inspector in the Boorley Green appeal. The First Defendant failed to consider the findings of the Inspector in the Boorley Green IR concerning the 5YHLS position in Eastleigh, or to make any reference to this recent report in the Hamble DL ( Ground 3).

iv) The Secretary of State reached conclusions in the Hamble DL concerning the weight to be given to "Local Gap" Policy 3.CO, which were irreconcilable with the Boorley Green DL, failed to have regard to the Boorley Green IR and/or were inadequately reasoned ( Ground 4).

5

Permission was granted on all four grounds by Gilbart J, following an oral renewal hearing on 19 April 2017.

Relevant Legal Framework

6

Paragraph 14 of the National Planning Policy Framework ("NPPF") contains the presumption in favour of sustainable development which in the context of decision making 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."

7

Paragraph 49 of the NPPF provides that:

"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."

8

In Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, Lord Carnwath considered (at paras 54–61) the proper interpretation of NPPF paragraphs 14 and 49. At para 54 he said:

"… since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the 'tilted balance' under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up to date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are 'significantly and demonstrably' outweighed by the adverse effects, or where 'specific policies' indicate otherwise. …"

At para 59 he continued:

"… The important question is not how to define individual policies, but whether the result is a five year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14…"

At para 61 he said:

"… No-one would naturally describe a recently approved Green Belt policy in a local plan as 'out of date', merely because the housing policies in another part of the plan fail to meet the NPPF objectives. Nor does it serve any purpose to do so, given that it is to be brought back into paragraph 14 as a specific policy under footnote 9. It is not 'out of date', but the weight to be given to it alongside other material considerations, within the balance set out by paragraph 14, remains a matter for the decision maker in accordance with ordinary principles."

9

It is common ground that the Secretary of State was wrong in the Hamble and Boorley Green DLs to conclude that Policies 1.CO and 3.CO were relevant policies for the supply of housing (see Hopkins Homes, per Lord Carnwath at paras 57–59, adopting a "narrow" interpretation of NPPF paragraph 49 under which relevant policies for the supply of housing simply means "housing supply policies"), however this error is of no avail to the Claimant.

The Hamble DL

10

Matters arising since the Inquiry were noted (DL 5–8). Two other decisions also concerning housing land supply ("HLS") in Eastleigh were forwarded to the Secretary of State in the Hamble appeal. On 24 May 2016 Inspector John Woolcock issued the Bubb Lane DL, determining that the Council could, at the time, demonstrate "something in the order of a four year supply" (Bubb Lane DL45); and on 7 October 2016 Inspector Boore issued his decision in the Botley Road DL in which he determined the HLS to stand at 4.25 years (Botley Road DL18). The Secretary of State stated that he had given "careful consideration" to the representations and submissions he received from the parties in relation to these two DLs (see also DL35 at para 13 below).

11

The Secretary of State found, so far as HLS was concerned, that the shortfall was "limited" (but he concluded that he should still afford "significant" weight to Policy 3.CO) (DL17).

12

The Secretary of State noted the Inspector's comment that at the time of the Inquiry the Council were not able to demonstrate more than a four-and-a-half years' supply of deliverable housing land, and that there is evidence of an existing need for affordable housing. Whilst the Secretary of State noted that the Council are now of the view that they are able to demonstrate a 4.86 years' supply, he agreed with the Inspector that the provision of up to 225 homes, 35% of which would be affordable, would be "a significant advantage arising out of the scheme", and it would help to meet the objectives of the Framework by boosting significantly the supply of housing and delivering a wide choice of high quality homes. The Secretary of State noted too that the choice of accommodation would also be boosted by the provision of 100 care and extra care spaces (see IR108 & 109, and DL19).

13

Under the heading "Planning balance and overall conclusion" the Secretary of State stated at DL 29–36:

"29. For the reasons given above, the Secretary of State concludes that the proposal is not in accordance with the development plan policies 1.CO and 3.CO and is not in accordance with the development plan as a whole. He has gone on to consider whether material considerations indicate that the proposal should be determined other than in accordance with the development plan.

30. The Secretary of State notes that in their letter of 23 June 2016, the Council updated their position on the supply of deliverable housing land, now claiming to be able to demonstrate 4.86 years' supply. In the absence of a five-year housing land supply, and having concluded that policies 1.CO...

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