Oxton Farm v Harrogate Borough Council

Hearing date: 9 June 2020

Approved Judgment

Introduction

The issue on this appeal is whether Harrogate BC (“Harrogate”) lawfully granted outline planning permission for 21 new houses and a village shop on land at Turnpike Lane, Bickerton, North Yorkshire. HHJ Klein held that the grant was lawful. His judgment is at [2019] EWHC 1370 (Admin).

D Noble Ltd applied to Harrogate for planning permission on 8 December 2017. One of Harrogate's planning officers reported on 28 August 2018; and, following her recommendation, conditional outline planning permission was granted on 25 September 2018.

Legal and policy framework

Section 70 (2) of the Town and Country Planning Act 1970 provides that:

“In dealing with an application for planning permission … the authority shall have regard to —

(a) the provisions of the development plan, so far as material to the application, … [and]

(c) any other material considerations.”

Section 38 (6) of the Planning and Compulsory Purchase Act 2004 provides that:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

The starting point, therefore, is the development plan. In February 2009, Harrogate adopted Core Strategy Policies SG1, SG2 and SG3. Those policies provide that:

“[Policy SG1:] [Harrogate] will make provision for 390 new homes per annum (net annual average) in Harrogate District during the period 2004 to 2023. In doing so it will seek to ensure that (as an interim target) about 160 of this annual provision will be homes for local people at affordable prices and that 70% of these new homes are in new buildings or conversions on previously developed land…

[Policy SG2:] Development or infill limits will be drawn around the settlements listed…to allow the sustainable growth and development of those settlements within the District that have the best access to jobs, shops and services…

[Policy SG3:] Outside the development and infill limits of the settlements listed in policy SG2 of this Core Strategy, land will be classified as countryside and there will be strict control over new development in accordance with national and regional planning policy protecting the countryside and Green Belt…”

Bickerton was not among the settlements listed under policy SG2. The explanatory notes to policy SG2 stated:

“Those settlements (villages and hamlets) not listed in this policy have very few services and facilities and often no defined built up area. In accordance with national and regional planning policy regarding the promotion of more sustainable patterns of growth, the settlements should not accommodate new market housing apart from the suitable conversion of existing buildings…”

The heart of the case for Oxton Farm is that the grant of planning permission did not comply with policy SG3.

Apart from the development plan, a local planning authority must also have regard to material considerations; and material considerations may justify a departure from the development plan. Material considerations fall into two categories: those which the decision-maker may take into account (but need not) and those which the decision-maker must take into account. The point was neatly encapsulated by Holgate J in R (Client Earth) v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 1303 (Admin) at [99]:

“In R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] PTSR 221 the Supreme Court endorsed the legal tests in Derbyshire Dales District Council [2010] 1 P & CR 19 and CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 182 which must be satisfied where it is alleged that a decision-maker has failed to take into account a material consideration. It is insufficient for a claimant simply to say that the decision-maker did not take into account a legally relevant consideration. A legally relevant consideration is only something that is not irrelevant or immaterial, and therefore something which the decision-maker is empowered or entitled to take into account. But a decision-maker does not fail to take a relevant consideration into account unless he was under an obligation to do so. Accordingly, for this type of allegation it is necessary for a claimant to show that the decision-maker was expressly or impliedly required by the legislation (or by a policy which had to be applied) to take the particular consideration into account, or whether on the facts of the case, the matter was so “obviously material”, that it was irrational not to have taken it into account.” (Original emphasis)

Among the material considerations to which a local planning authority must have regard is national planning policy. At the date of the decision, that policy was contained in the 2018 version of the National Planning Policy Framework (“the NPPF”). One of the key policies of the NPPF is that local planning authorities must be able to demonstrate a 5 year supply of deliverable sites for housing.

Paragraph 11 of the NPPF provides:

“Plans and decisions should apply a presumption in favour of sustainable development…

For decision-taking this means:

c) approving development proposals that accord with an up-to-date development plan without delay; or

d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date ⁷, granting permission unless:

…ii. 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.”

Footnote 7 provides:

“This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73) …”

The buffer referred to varies from 5 to 20 per cent. The approach to decision-taking in paragraph 11 of the NPPF is referred to in the jargon as the “tilted balance”.

Paragraph 48 of the NPPF provides:

“Local planning authorities may give weight to relevant policies in emerging plans according to:

a) the stage of preparation of the emerging plan (the more advanced its preparation, the greater the weight that may be given);

b) the extent to which there are unresolved objections to relevant policies (the less significant the objections, the greater the weight that may be given);

c) the degree of consistency of the relevant policies in the emerging plan to this Framework (the closer the policies in the emerging plan to policies in the Framework, the greater the weight that may be given).”

Paragraph 59 of the NPPF reaffirms the Government's objective of significantly boosting the supply of homes. It continues at paragraph 60:

“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”

Paragraph 73 of the NPPF provides:

“Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period… Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years' worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old. ³⁷”

Footnote 37 qualifies this by allowing benchmarking against strategic policies that are more than five years old where they have been reviewed and found not to require updating. The glossary to the NPPF defines “local housing need” as:

“… the number of homes identified as being needed through the application of the standard method set out in national planning guidance, or a justified alternative approach.”

The “standard method” to which paragraph 60 and the glossary referred takes the most recent household projections made by the Office of National Statistics as its baseline. The Government policy document (NPPG) giving guidance on the standard method explained that:

“The standard method set out below identifies a minimum annual housing need figure. It does not produce a housing requirement.”

It also made it clear that use of the standard method was not mandatory. It went on to state:

“The government is committed to ensuring more homes are built and are supportive of ambitious authorities who want to...