R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 07 February 2011 |
| Neutral Citation | [2010] EWHC 3278 (Admin),[2010] EWHC 2866 (Admin),[2007] EWHC 3122 (Admin),[2011] EWHC 97 (Admin) |
| Docket Number | CO/2892/2006,Case No: CO/12056/2010,Case No: CO/8474/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2011 |
[2007] EWHC 3122 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Sullivan
CO/2892/2006
Mr M Kingston QC and Mr P Goatley (instructed by Pitmans) appeared on behalf of the Claimant
Miss N Lieven QC (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
The Second Defendant did not attend and was not represented
This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the first defendant contained in a decision letter of 20th February 2006 dismissing the claimant's appeal against the failure of the second defendant to give a decision within the prescribed period on the claimant's application for planning permission for residential and associated development on land at Barton Farm, Andover Road, Winchester ("the appeal site"). The appeal site is a very substantial one extending to 84 hectares. It lies between Andover Road and the London to Southampton railway line to the north of Winchester city centre. The proposals were commensurately large: for up to 2,000 dwellings, together with a local centre and other supporting facilities including a primary school and open space.
The first defendant appointed an Inspector to hold an inquiry into the claimant's appeal. The Inspector held an inquiry between 11th and 13th and 25th to 28th October, and on 1st November 2005. The Inspector's report, which recommended that the appeal should be dismissed and planning permission refused, was submitted to the first defendant on 8th December 2005.
The second defendant had indicated that it would have refused planning permission for a number of reasons, but by the time of the inquiry there were only two issues as identified in paragraph 295 of the Inspector's report:
" … first whether circumstances are such that, in principle, the appeal site should be released for development now and secondly, if so, whether the appeal proposal is satisfactory and in particular makes adequate provision for infrastructure."
The Inspector resolved the second issue in favour of the claimant and the first defendant agreed. However, the appeal was dismissed because the first defendant agreed with the Inspector that there was "no compelling justification for the release of the appeal site at this time" (see paragraph 29 of the decision letter).
The first issue arose because of the approach to housing provision contained in the Hampshire County Structure Plan 1996 to 2011 (Review) adopted in 2000. Having noted that "there is no area of the plan more contentious than the level of growth, and there is no area where disagreement is more dramatic than in the issues raised by the need to allocate more land for housing", the Structure Plan set out a "baseline plus reserve position". Out of the 94,290 dwellings to be provided between April 1996 and March 2011 under Policy H1, a baseline provision of 80,290 was to be made in Local Plans in accordance with Policy H2. Policy H3 identified four Major Development Areas ("MDAs"), one of which was west of Waterlooville where 2,000 dwellings were proposed.
Policy H4 is in these terms, so far as relevant for present purposes:
"In addition to the housing provision in Policy H2, a reserve housing provision will be identified in Local Plans to accommodate up to 14,000 additional dwellings in the period 2001-2011, distributed as follows:
In northern Hampshire ….
Winchester City (north) MDA 2000 dwellings … "
The policy continues:
"The need for allocations of land to be released to accommodate this reserve provision will be determined by the local and strategic planning authorities in the light of the policies in revised RPG9. The strategic planning authorities will only support the release of individual greenfield allocations to meet this reserve provision where monitoring of the Structure Plan and Local Plans indicates there is a compelling justification to do so. Issues to be considered in reaching a decision will include … "
By the time of the inquiry, the appeal site had been identified through the local plan process as the Winchester City (north) MDA.
Having set out the relevant strategic and Structure Plan policies, the Inspector concluded that for the period from 2001 to 2011 there was a need for 60,300 net additional dwellings in total. He then considered whether or not that net additional need would be met. Having subtracted completion between April 2001 and April 2004, he concluded that he was left with a residual requirement of 43,123 dwellings. The County Council in detailed written evidence to the inquiry had submitted that the likely supply from 2004 to 2011 was 48,229. The claimant vigorously challenged the County Council's figure. As the Inspector said in paragraph 313 of his report:
"However, the appellant has re-examined supply figures at 112 sites out of 637 in the 2004 assessment, making no change at 38 sites, but reducing yields at 72 sites and increasing them at 2 [78, 186]. The net result of this exercise was to reduce overall site yields significantly and produce a total supply figure of 41,982 which is 1,141 below the residual requirement of 43,123 [186]. If this figure were to be correct, it could well justify a release of some of the reserve land provision in Policy H4."
The Inspector's conclusions continued in paragraphs 314 to 316:
"(314) Nevertheless I am reluctant to place significant weight on the appellant's assessment. This is because (i) the detailed assessment of the 74 sites (where different figures were substituted) could not be tested, because the County Council did not attend the inquiry [187] and the City Council was not in a position to comment on sites elsewhere in the county but outside their District [78], (ii) the assessment looked at only 112 out of 637 sites and so is incomplete [78, 186], and (iii) it transpired at the inquiry that the appellant's views about the yields of some sites utilised information which post-dated the survey date of April 2004, and so was inconsistent [79]. Certainly I agree with the view of the Council that, to be reliable or conclusive, the re-assessment would have to be complete and derived from a common base date [78, 79]. The County Council's survey at April 2004 has both of those attributes and so I prefer it. Although there were some hints that other sites might become available or produce higher yields, these possibilities are speculative at this stage and I attach little weight to them …
(315) All this means that the anticipated county dwelling supply from is well above the residual requirement of 43,123 and so in numeric terms there is no compelling justification for the release of the appeal site now. In those terms it would therefore conflict with policy H4 …
(316) If the site is not to be released under Policy H4, it remains in the countryside, and so policies C1 and C2 apply. The proposal would also conflict with these policies [10]. However, if the view is taken that the appellant's assumptions about future land supply are to be preferred and that the release of the Winchester City (north) MDA is justified, it has now been virtually established that the appeal site is that site … This is because Barton Farm is identified in the emerging Local Plan as the Winchester City (north) MDA, objections to that designation have been considered at the Local Plan inquiry and the Inspector has endorsed that selection [134, 167, 207-210, 225]. This element of the Local Plan is therefore likely to proceed to adoption. So if there is a compelling justification for the release of the MDA, the appeal proposal, by providing 2,000 dwellings at Barton Farm, complies with Policy H4 in that respect."
Under the heading "Other material considerations", the Inspector dealt with a number of other matters which the claimant contended should be taken into consideration in deciding whether or not there was compelling justification to release the appeal site in terms of Policy H4. Those matters included the claimant's contention that there had been a lack of progress on the Housing Supply Action Plan ("the Action Plan"). The Action Plan was produced by the County Council following correspondence from the Minister. On 21st May 2003 Lord Rooker, the Minister of State for Housing, Planning and Regeneration, wrote to the Chairman of the Strategic Planning Joint Advisory Panel ("JAP") at Hampshire County Council:
"I am writing in response to the recent decision by the [JAP] not to release the 'reserve housing provision' in Hampshire. As you know, the Government is keen to ensure that sufficient houses are built in the south east. We have recently published Sustainable Communities, which aims to tackle the housing shortage in the south east. I am aware that in recent years house-building in Hampshire has fallen significantly below the target set out in RPG9. I note that the report on Policy H4 estimates that completions in the County will rise, and that the RPG 9 target will be met by 2011.
I am encouraged by some of the work you are doing on completions, and that you have set out for the districts a number of actions that need to be taken in order to increase the provision of housing. This approach is in line with our call for local authorities to play an enhanced role in meeting housing needs. However, I want to emphasise that I see it as vital that these actions deliver an increase in housing...
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