Solihull Metropolitan Borough Council v Gallagher Estates Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Patten,Lord Justice Floyd |
| Judgment Date | 17 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1610 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/1702 |
| Date | 17 December 2014 |
[2014] EWCA Civ 1610
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISON (PLANNING COURT)
MR JUSTICE HICKINBOTTOM
CO/17668/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Patten
and
Lord Justice Floyd
Case No: C1/2014/1702
Mr Christopher Katkowski QC and Ms Rowena Meager (instructed by Solihull MBC Legal Services) for the Appellant
Mr Christopher Lockhart-Mummery QC and Mr Zack Simons (instructed by Pinsent Masons LLP) for the Respondents
Hearing dates: 25 November 2014
INTRODUCTION
Before the court are an appeal and a cross-appeal, both with permission granted by Sullivan LJ on 9 July 2014 and 2 October 2014 respectively, against the order of Hickinbottom J of 15 May 2014 following his judgment delivered on 30 April 2014 in the Planning Court at Birmingham. The two claimant companies in the case, now respondents, applied to the High Court under s.113(3) of the Planning and Compulsory Purchase Act 2004 to challenge the adoption on 3 December 2013 by the Solihull Metropolitan Borough Council, now the appellant, of the Solihull Local Plan (the SLP). The respondents have interests in two sites in the Tidbury Green area of Solihull where they propose to undertake housing development. But the SLP placed both sites in the Green Belt. If that state of affairs persists any application for planning permission for housing will, as the judge observed at paragraph 1 of his judgment, almost inevitably now be refused.
S.113(3) of the 2004 Act, which I need not set out, allows such a challenge to be brought on conventional public law grounds. The judge upheld the claim, which was brought on three grounds, and ordered that those parts of the SLP which he found to be defective should be treated as not adopted and be remitted to the Planning Inspectorate for re-examination by a different inspector. The appellant authority sought and obtained permission to appeal in relation to the judge's conclusions on Grounds 1 and 3, and I will refer to the grounds of appeal in the same way. The issue on Ground 1, to borrow the language of Sullivan LJ granting permission, is whether (as the judge found) paragraph 47 of the National Planning Policy Framework (the NPPF) effected a "radical policy change in respect of housing provision" (judgment paragraph 98) so as to render unlawful the Inspector's treatment of housing provision in his Report following the examination-in-public (the EIP) of the SLP. The issue on Ground 3 is whether the factors identified by the Inspector at paragraph 137 of his Report were not as a matter of law (as the judge found they were not) capable of constituting "exceptional circumstances" for the purpose of paragraph 83 of the NPPF. I will of course cite the relevant parts of the NPPF and other germane legal materials.
The respondent developers have permission to appeal in relation to the relief granted by the judge. They say the judge should have quashed those sections of the SLP which he found to be unlawful, rather than remit them for re-examination by another inspector. In the event there was something close to consensus between the parties in relation to the cross-appeal, to the effect that the right order (upon the premise that the appellant's appeal on Grounds 1 and 3 failed) was to remit the defective parts of the SLP not to the Inspectorate, but to the Council.
The SLP is what under the Act of 2004 is called a "development plan document". The adoption of such a document is constrained by a series of statutory requirements described by the judge at paragraphs 10 – 19 of his judgment. He summarised the position at paragraph 20 as follows:
"In summary, these provisions mean that each development plan document is subject to an examination in public by an independent inspector appointed by the Secretary of State, who determines (i) whether the plan complies with various procedural requirements, (ii) whether the plan is 'sound'…, and (iii) whether it is reasonable to conclude that the local planning authority has complied with any duty to cooperate. Having done so, there are three courses open to the inspector:
i) If he is satisfied that the plan meets the procedural and 'soundness' requirements, he must recommend adoption of the plan and the authority may adopt the plan.
ii) If he is not satisfied as to these two matters, and is not satisfied that the authority has complied with its duty to cooperate, he must recommend non-adoption and the authority must not adopt the plan.
iii) If he is not satisfied as to these two matters, but is satisfied that the authority has complied with its duty to cooperate, he must recommend non-adoption; but, on the authority's request, he must also recommend modifications to the plan that would make it satisfy those two requirements. The authority may then adopt the plan with those modifications."
It is convenient at once to set out the material part of NPPF paragraph 47:
"To boost significantly the supply of housing, local planning authorities should:
• use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
• identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land…"
I should also refer to NPPF paragraph 14, which provides amongst other things that in furtherance of the presumption in favour of sustainable development –
"Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, 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…"
I shall refer to other materials in addressing the arguments, including PPS3 (the earlier Planning Policy Statement on Housing) which was replaced by Part 6 of the NPPF. Amongst other things PPS3 referred (paragraph 33) to "Strategic Housing Market Assessments" (SHMAs) and (paragraph 34) "Regional Spatial Strategies" (RSSs). As I shall show their use survived in the NPPF regime.
THE APPELLANT'S CASE ON GROUND 1 SUMMARISED
I may describe the appellant's argument on Ground 1 in the very broadest terms by adapting the summary at paragraph 36 of the skeleton argument for the respondents prepared by Mr Lockhart-Mummery QC. This approach is, I apprehend, loyal to the submissions made by Mr Katkowski QC for the appellants:
i) The judge was wrong to conclude that in respect of housing provision NPPF effected a "radical change" (a phrase used by the judge below at paragraph 98 of his judgment) from the previous policy articulated in PPS3.
ii) The judge was also wrong to hold that NPPF paragraph 47 required a two-step approach: first, an objective assessment of full housing needs, and secondly an assessment as to whether other policies dictate or justify constraint.
iii) The judge should have held that the process by which the Inspector came to recommend adoption of the SLP satisfied the requirements of NPPF paragraph 47.
iv) The judge should have held that the Inspector was entitled to conclude (as a matter of planning judgment) that the objective assessment of needs (OAN) was "embedded" in the earlier work of what is called the Phase II RSS Review Panel.
If these four points were resolved as the appellant contends, it would follow that the respondent developers' challenge based on Ground 1 should have failed. The first two of the four points run together: the "radical change", which the judge found was effected by the NPPF, consisted essentially in the requirement of the two-step approach which the appellant authority seeks to repudiate. I shall therefore consider them together. The fourth point, which is derived from paragraph 33 of the appellant's skeleton argument prepared by Mr Katkowski QC, became rather more generalised in the course of argument: Mr Katkowski's more compendious submission was that on a careful reading of the Inspector's Report, it can be seen that he made an OAN. I shall deal with that.
GROUND 1: "RADICAL CHANGE" AND THE TWO-STEP APPROACH
I turn to the first two points. I have set out NPPF paragraph 47. PPS3, the earlier policy, included the following advice (written, of course, at a time when planning strategy was considered at a regional, as well as local, level). Under the heading "Assessing an appropriate level of housing":
"32. The level of housing provision should be determined taking a strategic, evidence-based approach that takes into account relevant local, sub-regional, regional and national policies and strategies achieved through widespread collaboration with stakeholders.
33. In determining the local, sub-regional and regional level of housing provision, Local Planning Authorities and Regional Planning Bodies, working together, should take into account:
• Local and sub-regional evidence of need and demand, set out in Strategic Housing Market Assessments ['SHMAs'] and other relevant market information such as...
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