Jelson Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 22 November 2016 |
| Neutral Citation | [2016] EWHC 2979 (Admin) |
| Docket Number | Case No: CO/2673/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 November 2016 |
[2016] EWHC 2979 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/2673/2016
Mr Lockhart-Mummery QC (instructed by Shakespeare Martineau) for the Claimant
Ms Blackmore (instructed by Government Legal Department) for the First Defendant
Ms Osmund-Smith (instructed by Solicitor to Hinckley & Bosworth Borough Council) for the Second Defendant
Hearing date: 1 st November 2016
A. Introduction: The Issue – "FOAN"
This case concerns a dispute over the calculation of "Full Objectively Assessed Need" for housing or "FOAN". This is a measure of the theoretical need that a local authority has for housing. It is required to be set by local authorities in accordance with paragraph [47] of the National Planning Policy Framework ("NPPF"). It is an important figure because it is used as a benchmark against which the "need" for a particular proposed development is measured, subject to the processes described below. I have described FOAN as a theoretical figure because once the FOAN is calculated in practice it is then modified to take account of relevant policy considerations. In practice the FOAN will almost always exceed the housing requirement figure that is set once policy is applied. For this reason FOAN has been termed a "policy-off" figure and the housing requirement ultimately fixed has been termed a "policy-on" figure. The policy on housing requirement will (or should) be worked out in the context of the preparation of a Local Plan. Problems however arise when there is no up-to-date Local Plan.
On the 12 th May 2014 Jelson Limited ("the Claimant") applied to Hinckley and Bosworth Borough Council ("HBBC") for planning permission for residential development and associated infrastructure in relation to land off Sherborne Road, Burbage, Leicestershire. On the 12 th November 2014 HBBC rejected the application and the Claimant appealed, by way of public inquiry, to the Inspector. By a decision made on the 4 th May 2016 ("the Decision") the appeal was refused. A central issue at the inquiry was whether HBBC could establish that it had a five year supply of housing for the purposes of paragraph [47] NPPF. The Council argued that it could demonstrate a supply sufficient to meet demand for a period in excess of five years. The Claimant, however, argued that there was a supply of significantly less than five years. The nub of the dispute between the parties centred upon identification of a figure, or range of figures, as to the relevant numerical requirement. The Claimant argued that if HBBC was unable to demonstrate a supply of five years or more that this would have been a significant material consideration in favour of allowing the appeal (taking into account the presumption in favour of grant in paragraph [14] NPPF). In her Decision the Inspector held that there was, in fact, sufficient housing land in Hinckely and Bosworth to meet the housing needs for the following five years.
It is common ground that at the time of the inquiry HBBC had not adopted a new Local Plan since the coming into effect of the NPPF in March 2012. The Core Strategy ("CS") had been adopted in 2009 and this set out a housing requirement of 450 dwellings per annum (" dpa"). HBBC did not contend that the CS contained an assessment of or figure for FOAN in line with the requirement in paragraph [47] NPPF. Nonetheless HBBC argued that the evidence before the inquiry supported a conclusion that there was a housing requirement of 450 dpa.
In Ground I the Claimant contends: (a) that the Inspector failed to have due regard and/or to understand the requirements of paragraph [47] NPPF; and/or (b) that she failed to understand and follow the principles of the Court of Appeal in City and District of St Albans v Hunston Properties and SSCLG [2013] EWCA Civ 1610 (" Hunston") and that of the High Court in Gallagher Homes Limited v Solihull Metropolitan Borough Council [2014] EWHC 1238, affirmed on appeal [2014] EWCA Civ 1610 (" Gallagher"); and/or (c) that the Inspector failed to give proper reasons for concluding that there was a five year supply; and/or (d) that in any event the Inspector's approach to the identification of the FOAN was irrational and confused.
In Ground II the Claimant contends that the Inspector erred in not addressing and/or giving reasons for her conclusion that the Claimant make a contribution to the costs to be incurred by the police in providing additional police services to meet incremental demand for policing arising from the new development.
B. Legal and Policy Framework
(i) The test on appeal
The case comes before the Court by way of statutory application pursuant to section 288 Town and Country Planning Act 1990 ("TCPA 1990"). The legal principles which fall to be applied on such an application are well established. They are summarised in the judgment of Lindblom J, as he then was, in Bloor Homes East Midlands Limited v SSCLG [2014] EWHC 754 (Admin) at paragraph [19]. Because, one way or another, most are raised in this case, I set out the summary in full below:
"19. The relevant law is not controversial. It comprises seven familiar principles:
(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."
(ii) Evidential considerations relating to the assessment of a FOAN
The approach that inspectors should apply to the evidential tasks...
To continue reading
Request your trial
-
Hallam Land Management Ltd v Secretary of State for Communities and Local Government and Another
...Borough Council v Richborough Estates Partnership LLP [2016] EWCA Civ 168, per Lindblom LJ at [47]." 18 In Jelson Ltd v Secretary of State for Communities and Local Government [2016] EWHC 2979 (Admin), Green J reviewed the authorities concerning the requirement to identify a 5YHLS figure, a......
-
Jelson Ltd v (1) Secretary of State for Communities and Local Government
...[2018] EWCA Civ 24 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE ADMINISTRATIVE COURT PLANNING COURT MR JUSTICE GREEN [2016] EWHC 2979 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Rupert Jackson Lord Justice Lindblom and Lord Justice Peter Jackson Case ......
-
Hallam Land Management Ltd v Secretary of State for Communities and Local Government
...Government [2016] EWHC 2733 (Admin) (at paragraph 28), and Jelson Ltd. v Secretary of State for Communities and Local Government [2016] EWHC 2979 (Admin) (at paragraph 13). 35 In this case, Mr Hill submitted, the Secretary of State had failed to make the planning judgments he needed to make......