Jelson Ltd v (1) Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Lindblom,Lord Justice Rupert Jackson |
| Judgment Date | 19 January 2018 |
| Neutral Citation | [2018] EWCA Civ 24 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2016/4558 |
| Date | 19 January 2018 |
[2018] EWCA Civ 24
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE GREEN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rupert Jackson
Lord Justice Lindblom
and
Lord Justice Peter Jackson
Case No: C1/2016/4558
Mr Christopher Lockhart-Mummery Q.C. (instructed by Shakespeare Martineau LLP) for the Appellant
Mr Hereward Phillpot Q.C. and Ms Sasha Blackmore (instructed by the Government Legal Department) for the First Respondent
Ms Thea Osmund-Smith (instructed by Hinckley and Bosworth Borough Council) for the Second Respondent
Hearing date: 17 October 2017
Introduction
Did an inspector who dismissed an appeal against a local planning authority's refusal of planning permission for housing development err in law when assessing the need for housing in the authority's area? That is the central question in this appeal. It does not raise any novel issue of law.
The appellant, Jelson Ltd., appeals against the order of Green J., dated 22 November 2016, dismissing an application under section 288 of the Town and Country Planning Act 1990. By that application it had challenged the decision of the inspector appointed by the first respondent, the Secretary of State for Communities and Local Government, to determine its appeal under section 78 of the 1990 Act against the refusal of outline planning permission by the second respondent, Hinckley and Bosworth Borough Council, for a development of housing on land off Sherborne Road, Burbage in Leicestershire. The site is about 5.6 hectares of undeveloped land to the east of Burbage, outside the settlement boundary, in an area where Policy 4 of the Hinckley and Bosworth Core Strategy says the council will “[protect] and preserve the open landscape … which provides an important setting for the village …”. Jelson's proposal was for the construction of 73 dwellings. The inspector held an inquiry into the section 78 appeal in December 2015 and February 2016. Her decision letter is dated 4 May 2016. Green J. rejected Jelson's challenge on all grounds. Permission to appeal was granted by Lewison L.J. on 10 February 2017.
The issue in the appeal
The principal issue in the appeal is whether the inspector adopted a lawful approach to identifying the “full, objectively assessed needs” for housing, and, in particular, whether she lawfully rejected the figure of 980 dwellings per annum as “a figure that should be considered in the calculation”.
Government policy and guidance
In a section of the National Planning Policy Framework (“the NPPF”) setting out government policy for “Delivering a wide choice of high quality homes”, paragraph 47 says that “[to] boost significantly the supply of housing, local planning authorities should” do several things. The first is to “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”.
Paragraph 49 of the NPPF says that “[housing] applications should be considered in the context of the presumption in favour of sustainable development”, and that “[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”. One consequence of a local planning authority being unable to do that is that the policy for the “presumption in favour of sustainable development” in paragraph 14 of the NPPF is brought into play (see my judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, at paragraphs 22 and 23).
In the part of the NPPF devoted to “Plan-making”, paragraph 159 says that local planning authorities “should have a clear understanding of housing needs in their area”. They should, among other things, “prepare a Strategic Housing Market Assessment to assess their full housing needs, working with neighbouring authorities where housing market areas cross administrative boundaries”. The Strategic Housing Market Assessment “should identify the scale and mix of housing and the range of tenures … the local population is likely to need over the plan period” to “[meet] household and population projections, taking account of migration and demographic change”, to “[address] the need for all types of housing, including affordable housing and the needs of different groups in the community …”, and to “[cater] for housing demand and the scale of housing supply necessary to meet this demand …”.
Those policies in the NPPF are amplified in passages of the Planning Practice Guidance first issued by the Government in March 2014 (“the PPG”). Under the heading “Methodology: assessing housing need”, paragraph 2a-014-20140306 of the PPG says that “[establishing] future need for housing is not an exact science”, and that “[no] single approach will provide a definitive answer”. Paragraph 2a-015-20140306 states that “[household] projections published by the Department for Communities and Local Government should provide the starting point estimate of overall housing need”. Paragraph 2a-017-20140306 emphasizes that the Government's population and household projections are “statistically robust and … based on nationally consistent assumptions”, but confirms that “plan makers may consider sensitivity testing, specific to their local circumstances, based on alternative assumptions in relation to the underlying demographic projections and household formation rates”. Paragraph 2a-029-20140306, under the heading “What is the total need for affordable housing?”, says that “[the] total affordable housing need should … be considered in the context of its likely delivery as a proportion of mixed market and affordable housing developments, given the probable percentage of affordable housing to be delivered by market housing led developments …” and that “[an] increase in the total housing figures included in the local plan should be considered where it could help deliver the required number of affordable homes”.
We are not concerned in this appeal with the Government's more recent efforts to bring simplicity and consistency to the methodology for identifying housing need, in the White Paper “Fixing our broken housing market” published in February 2017, and its “Planning for the right homes in the right places: consultation proposals” published in September 2017.
As Mr Christopher Lockhart-Mummery Q.C., for Jelson, reminded us, the NPPF policies relating to a local planning authority's task of identifying “the full, objectively assessed needs for market and affordable housing …” have already been considered by this court on at least three occasions: in City and District Council of St Albans v Hunston Properties Ltd. [2013] EWCA Civ 1610 (see the judgment of Sir David Keene at paragraphs 25 and 26), in Solihull Metropolitan Borough Council v Gallagher Estates Ltd. [2014] EWCA 1610 (see the judgment of Laws L.J. at paragraphs 9 and 10), and in Oadby and Wigston Borough Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 1040 (see my judgment, at paragraphs 34 to 56).
The inspector's decision letter
In paragraph 4 of her decision letter the inspector identified two “Main Issues” in Jelson's section 78 appeal. The first was “whether there is a 5 year supply of housing land in the Borough”. The second was “the effect of the proposed development on the character and appearance of the surrounding landscape”.
The inspector began her discussion of the first main issue by considering “Housing land supply – OAN”, in paragraphs 5 to 17 of her decision letter. In paragraph 5 she said:
“5. In order to boost significantly the supply of housing local planning authorities are required to use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs (OAN) for market and affordable housing in the housing market area. The Hinckley and Bosworth (H&B) Core Strategy … was adopted in 2009, predating the publication of [the NPPF] in 2012. The [core strategy] target is to deliver 9000 dwellings up to 2026, that is, 450 units per annum. This requirement, however, is derived from the revoked East Midlands Regional Plan, the dwelling targets in which were based on 2004 household projections. The [core strategy] requirement is not the OAN and is not, therefore, consistent with [the NPPF].”
A footnote (footnote 1) to the first sentence of that paragraph confirmed that the inspector had in mind the policy in paragraph 47 of the NPPF. In paragraphs 6 and 7, she explained her understanding of the concept of “OAN”:
“6. The starting point for the calculation of OAN is demographic calculations based on the most recent, available population projections. This is made clear in paragraph 159 of [the NPPF] which states that the strategic housing market assessment (SHMA) should identify the scale and mix of housing and the range of tenures that the local population is likely to need over the plan period which meet household and population projections, taking account of migration and demographic change. The Council, together with the other Leicestershire district and borough councils and Leicester City Council, commissioned a SHMA which was published in June 2014 [namely, the Leicester and Leicestershire Strategic Housing Market Assessment, prepared by GL Hearn Ltd. and Justin Gardner Consulting [“the SHMA”]].
7. Demographic calculations...
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