Robert Hitchins Ltd v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 27 May 2010 |
| Neutral Citation | [2010] EWHC 1157 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13646/2009 |
| Date | 27 May 2010 |
[2010] EWHC 1157 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon. Mr Justice Nicol
Case No: CO/13646/2009
Peter Village QC and James Strachan (instructed by Shoosmiths) for the Claimant
Tim Morshead (instructed by Treasury Solicitor) for the 1 st Defendant
Hearing dates: 10 th and 11 th May 2010
Mr Justice Nicol:
This is an application under s.288 of the Town and Country Planning Act 1990 to quash the decision of the Secretary of State dated 6 th October 2009 by which he dismissed the Claimant's appeal for non-determination of the Claimant's application to Forest of Dean District Council (‘Forest of Dean’), the Local Planning Authority, for planning permission for a residential development of up to 750 dwellings, a site reserved for a school, ancillary facilities, open space and landscaping in Lydney, Gloucestershire. The Claimant alleges that the Secretary of State and the Inspector, on whose report he relied, acted unlawfully in refusing planning permission. The principal issues concern the treatment of the proportion of affordable housing which the scheme proposed.
The site is about 25 hectares and is immediately to the east of the existing settlement of Lydney. It has been referred to throughout as ‘Lydney B’. To the south of Lydney B is a second site, Lydney A. A planning application for Lydney A had previously been submitted by the present Claimant. There, too, Forest of Dean failed to determine the application but on 1 st July 2008 the Secretary of State allowed the Claimant's appeal and permission was granted for no more than 320 dwellings, a neighbourhood centre, employment land, a school site, infrastructure, ancillary facilities, open space and landscaping. Importantly for the principal issue in the present case, the Secretary of State accepted that 20% of affordable housing was the maximum provision that was reasonably achievable having regard to the specific site viability assessment.
The Lydney B proposal, as originally put forward, suggested that 30% of the housing on the site should be affordable. Because of the credit crunch and its associated impact on general economic conditions, this was later reduced to 13% (increasing to 20% if certain grants could be arranged). The Claimant made clear that it regarded the two Lydney schemes as linked so that if permission for Lydney B was refused it would not proceed with the permission already granted for Lydney A.
As I have said, Forest of Dean failed to reach a decision on the Lydney B proposal. On 11 th August 2008 the appeal was recovered by the Secretary of State. On 9 th September 2008 Forest of Dean resolved that, if it had been in a position to determine the application, it would have refused permission because, amongst other reasons, it would have failed to secure a necessary contribution to affordable housing. The hearing of the inquiry was effectively conducted by the Inspector, Ms Susan Holland, in May 2009. She produced her report on 20 th July 2009. She recommended that permission should be refused. The Secretary of State accepted her recommendation in his decision letter of 6 th October 2009.
As a result of the Planning and Compulsory Purchase Act 2004 s.38(6) a decision on an application for planning permission must be made in accordance with the relevant development plan unless material considerations indicate otherwise. The parties were agreed that for present purposes the Secretary of State had correctly identified the development plan as comprising a number of documents. First, they included the Regional Spatial Strategy for the South West. This had been published in 2001 when it was known as RPG10. It is convenient to refer to it by its current title of Regional Spatial Strategy but to add its date (‘RSS 2001’). This is because the RSS was in the process of revision. This amended form was referred to by the Inspector and the Secretary of State as the ‘emerging RSS’. Because it had not at the time of the decision (or, indeed, as at the time of the hearing before me) been published by the Secretary of State, it did not have the status of being part of the development plan, but it is clear that the emerging RSS was a material consideration to which the Secretary of State was entitled to have regard. The second component of the development plan was the Gloucestershire Structure Plan (adopted in 1999). The third element of the development plan was the Forest of Dean District Local Plan for the period 1991 -2011 and which was adopted in November 2005. This was saved by the Secretary of State in October 2008.
Among the other material considerations which were taken into account by the Secretary of State and the Inspector were Planning Policy Statement 3, ‘Housing’ (‘PPS3’). Paragraph 8 of PPS 3 makes clear that local planning authorities should have regard to it as a material consideration when making decisions on planning applications after 1 st April 2007.
It is convenient to summarise what each of these documents had to say about the inclusion of affordable housing.
i) The RSS 2001 at para 7.16 in HO3 said,
‘Local authorities…in their relevant plans, policies and programmes should aim to ensure that sufficient affordable housing is provided in order to meet community needs in both urban and rural areas. This should involve:
- the identification of targets in development plans indicating the levels of affordable housing required in each area; these should be based on local housing needs assessments undertaken to consistent standards across the region, which take into account both need and supply-side consideration….’
ii) The Emerging RSS is far more specific. Paragraph 6.1.8 says:
‘Good practice on the use of s.106 mechanisms should be shared. Local Authorities will need to liaise with neighbouring authorities, affordable housing providers and the development industry and be realistic in their expectations of affordable housing delivery through s.106, recognising the danger of stifling overall housing growth through over ambitious requirements. LDD [Local Development Documents] policies should routinely require more than 35% of housing to be affordable leading to at least 10,000 affordable dwellings annually.’
H1 then added:
‘Housing Affordability: Within the 29,623 dwellings per annum (at least) required for the region, at least 10,000 affordable homes per annum will be provided in the period to 2026. Provision will be made for at least 35% of all housing developments annually across each Local Authority area and Housing Market Area to be affordable housing. Development Plan Documents should include policies to deliver a substantial increase in the amount of affordable housing in the region and reflect the outcome of joint working including Strategic Housing Market Area Assessments. These should:
- Specify targets for and proportions of affordable housing;
….
- Help to secure and maintain appropriate supply of affordable housing in the wider context of maintaining an overall five year housing land supply.’
This quotation incorporates changes which the Secretary of State had made in July 2008. These had included raising the percentage of affordable housing to 35% (from 30%) and increasing the number of affordable homes to 10,000 (from 7,500).
iii) The Gloucestershire Structure Plan is more general in its comments on the need to make provision for those unable to compete in the housing market. Reflecting the date of its adoption (1999) it alluded to an earlier version of PPS3.
iv) The Local Plan both addressed the general issue of affordable housing and spoke specifically of plans for East of Lydney. The general comments were in R(F)H.13 which said:
‘An element of affordable housing will be sought by negotiation on all housing sites which are of 15 units or more or are larger than 0.5ha in towns and villages of greater than 3000 population or are of 5 units or more or larger than 0.2ha in other locations [elsewhere, this is referred to as the ‘threshold’]. The provision sought will be related to evidence of local need in the District, including housing need surveys, and to the suitability of the site question. The provision of affordable housing should be on the same site but exceptionally and by agreement with the developer, a commuted sum may be sought equivalent to the appropriate affordable housing share on the site in order that the affordable housing may be provided closer to where the need for it arises.’
In the commentary which follows at paragraph 2.52 the document calculates that the proportion of affordable housing which would be needed was approximately 40%. It said, ‘This figure will therefore be used as a starting point in all negotiations for affordable housing, though of course the actual provision will depend on the capabilities of the individual site concerned.’
The plan for Lydney itself appeared at R(F).Lydney 1. This said that 65 hectares of land east of Lydney would be allocated for mixed development including 1250 dwellings with 600 dwellings in the phase due to run from 2003–7 and 650 in the phase from 2008–2011. The development would be required to provide (among other things) for ‘An appropriate provision of affordable housing.’
I turn to PPS3. Primarily this is directed to Local Planning Authorities in the preparation of their Local Development Documents and Regional Spatial Strategies (see paragraph 6). It...
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