R West Lancashire Borough Council v Secretary of State for Communities and Local Government and Others

JurisdictionEngland & Wales
JudgePelling QC,HIS HONOUR JUDGE
Judgment Date05 July 2017
Neutral Citation[2017] EWHC 3451 (Admin)
Docket NumberCO/4913/2016
CourtQueen's Bench Division (Administrative Court)
Date05 July 2017

[2017] EWHC 3451 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

HIS HONOUR JUDGE Pelling QC

(Sitting as a Judge of the High Court)

CO/4913/2016

Between:
The Queen on the application of West Lancashire Borough Council
Claimant
and
Secretary of State for Communities and Local Government & Ors
Defendant

Mr J Maurici QC appeared on behalf of the Claimant

Mr Tucker QC appeared on behalf of the Second Defendant

Pelling QC HIS HONOUR JUDGE

Introduction

1

This is the hearing of a planning statutory review commenced by the claimant (“ LPA”) under section 288 of the Town and Country Planning Act 1990, permission to continue these proceedings having been granted by an order made by me on 4th November 2016. The claim is not opposed by the first defendant, the Secretary of State, and a consent order has been signed as between the LPA and the Secretary of State, by which it has been agreed that the decision of the inspector must be quashed. Wain Homes however continues to oppose the claim and this hearing is concerned with the determination of the issues that arise as between the claimant and the second defendant, Wain Homes.

The Facts

2

Wain Homes applied for outline planning permission to construct up to 100 dwellings and for detailed planning permission to construct up to 50 dwellings at a Greenfield site at Aughton, Ormskirk, in Lancashire, an area for which the LPA is the local planning authority. The LPA refused the application and Wain Homes appealed against that decision under section 78 of the Town and Planning Act 1990. That appeal came before Mr Sproule, an inspector appointed by the Secretary of State (hereafter “the inspector”). By a Decision Letter, dated 19th August 2016, the inspector allowed the appeal and granted the application by Wain Homes in the form originally submitted by the second defendant to the claimant.

3

The Decision Letter identified the main issues between parties in paragraph 5 as including:

“(a) Whether the proposed development would accord with the development plan and National Planning Policies regarding the provision of land for housing.”

4

The land in respect of which the application had been made was what was described in the West Lancashire local plan (“the local plan”), as “ a Plan B site” that is one that would be considered for release for housing development if one of three triggers events occurred. The first and second trigger events related to housing demand after years 5 and 10 of the local plan period, which ended in 2027, and the third trigger concerned an increase in local housing demand “… as a result of new evidence”. As the inspector noted at paragraph 13 of the Decision Letter:

“… Policy GN2 confirms that: sites allocated for Plan B will be safeguarded from development for the needs of Plan B should it be required; and if Plan B is not required, the land will be safeguarded from development until 2027 for development needs beyond 2027. Accordingly the purpose of Policy GN2 is to safeguard the appeal site from development while providing a means for its release if Plan B is triggered.”

He added at paragraph 14:

“In relation to LP Policy RS6 and its ‘Plan B’, the supporting text in LP paragraph 7.68 states ‘…if it is anticipated a year before any trigger point that is reached (i.e. at the end of years 4 and 9 of the Plan) that housing delivery is at risk of triggering the Plan B, the Council will commence a review of the level and nature of any undersupply compared to housing requirements…’. This confirms that it would be the Council who would commence a review to determine which Plan B sites would be the most suitable for release at that time.”

This led the LPA and Wain Homes to concede before the inspector and the inspector to record that:

“ … the appeal proposal conflicts with LP Policies GN2 and RS6 and for the reasons above, no matters would cause me to take a different view.”

— see paragraph 38 of the Decision Letter.

5

At the heart of the appeal was a consideration of the 5 year housing land supply. This was highly material to the outcome of the appeal because paragraph 47 of the NPPF seeks to boost significantly the supply of housing with paragraph 49 stating 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.”

The inspector added at paragraphs 48 – 51 of the Decision Letter, and it is not in dispute that:

“Footnote 11 of the Framework states that ‘…To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans…’…

PPG also addresses deliverability. In relation to planning permission, it is clear that ‘…Deliverable sites for housing could include those that are allocated for housing in the development plan and sites with planning permission (outline or full that have not been implemented) unless there is clear evidence that schemes will not be implemented within five years…’ Approval of reserved matters is not required for a site to be considered deliverable, and the main parties are agreed that Footnote 11 applies to Local Development Orders (LDOs) as these grant planning permission.

In addition, the Council has highlighted that case law supports the view that a resolution to grant planning permission or inclusion in a development plan can provide evidence of deliverability.

Also, HLS does not require certainty that housing sites will be developed in the five year period, as a loose end does not necessarily provide the clear evidence that a site with planning permission would not be deliverable.”

6

The inspector considered the various housing land supply sites relied upon by the LPA. Those sites included site 15 which is referred to as the Sluice Lane/New Road site, of which the inspector said at paragraph 67:

“The council and appellants' position are 48 and 0 units respectively. The site has outline planning permission for up to 51 dwellings with a reserved matters application in February 2016. A local developer is on board and both main parties consider it to be a good market location. The developer has confirmed its drainage solution for the site is acceptable to the relevant regulator and utilities provider. However, the appellant has raised a ‘loose end’ regarding both the area for the required ecological works and the drainage outfall being outside the application area. While the drainage solution may be acceptable it has not been demonstrated that it and the required ecological works can be implemented. This ‘lose end’ would appear to be very important at the delivered of the site therefore 0 units are added to the HLS.”

The LPA contends that the inspector misunderstood its case in relation to this site. Its challenge in relation to the element of the inspector's decision is the subject of ground 2 of its section 288 claim.

7

Having completed his review of the various housing sites that were relied upon by the council as demonstrating its housing land availability the inspector concluded that the LPA had demonstrated housing land supply for only 4.2 years. He said this at paragraph 88 of the Decision Letter:

“Framework paragraph 14 states that ‘…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….’… Restrictive specific policies in the Framework include those in relation to Green Belt, but the appeal site has been taken out of the Green Belt.”

8

Having considered and weighed various other material considerations the inspector concluded that the appeal should be allowed and permission granted. In so far as is material he stated his conclusions in these terms:

“The site lies outside the Green Belt. In the absence of a five year HSL relevant LP policies for the supply of housing are out of date and the presumption in favour of sustainable development applies in this case. The land forms part of a designation that indicates the suitability of the site in principle for housing development. This includes the reasonable sustainability of the location in relation to its proximity to shops, services, job opportunities and transport infrastructure. However, the potential loss of open countryside and BMV land weighs against the scheme…

LP Policies GN2 and RS6 are clearly relevant policies for the supply of housing that, within the context of the provisions in paragraph 49 of the Framework, are ‘out-of-date’ due to the absence of a five year HLS. The Council refers to the Richborough Estates47 case regarding the effect of policies being out-of-date within the context of Framework paragraphs 14 and 49. In particular, attention is drawn to paragraph 47 of the judgement which states

‘…There will be many cases, no doubt, in which...

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