Tewkesbury Borough Council v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 18 October 2021 |
| Neutral Citation | [2021] EWHC 2782 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/639/2021 |
[2021] EWHC 2782 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Dove
Case No: CO/639/2021
and
Josef Cannon (instructed by One Legal) for the Claimant
Tim Buley QC (instructed by Government Legal Department) for the Defendant
Killian Garvey (instructed by Shoosmiths LLP) for the Interested Party
Hearing dates: 21 st and 22 nd July 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 25 th October 2019 the interested party applied to the claimant for outline planning permission for the erection of up to 50 dwellings with associated site works, open space, car parking and site remediation in respect of a site described as Land off Ashmead Drive, Gotherington. The application was refused by the claimant on the 16 th June 2020 and the interested parties appealed collectively. The appeal was conducted by way of the public inquiry procedure, and the Inspector appointed by the defendant to determine the appeal issued her decision letter on the 12 th January 2021, in which she allowed the appeal and granted planning permission.
The claimant's application is made under section 288 of the Town & Country Planning Act 1990 and seeks to quash the Inspector's decision. The claimant is represented by Mr Josef Cannon, the defendant by Mr Tim Buley QC and the interested party by Mr Killian Garvey. The attribution of submissions set out below should be read accordingly. I am very grateful to all counsel and also to their legal teams for their extremely helpful written and oral submissions and, in particular, for the thoughtful preparation that went into a focused hearing bundle which provided simply the essential documentation necessary for the purpose of the hearing. A tribute to the care which had gone into the preparation of the hearing bundle was that (with the exception of some material which emerged subsequent to its preparation) there was no need to delve into any other documentation.
The facts
The requirement to demonstrate a five-year housing land supply is a central feature of national planning policy in relation to residential development. The details of that policy are set out below, but suffice to say it was an issue which the claimant and the interested parties considered should be addressed as part of the merits of the appeal proposal. It was an agreed position that at the time of the public inquiry the claimant could not demonstrate that there was a five-year supply of housing in their area.
The issue between the claimant and the interested parties for the purposes of the appeal was the extent of the shortfall in the five-year housing land supply. There were individual elements to that dispute, but for the purposes of the present case the key question was whether or not past oversupply of housing measured against an annual requirement could be taken into account when calculating the current housing land supply.
The nature of the dispute as to whether it could be taken into account or not was helpfully crystalised for the purposes of the debate at the public inquiry in the Statement of Common Ground (“the SOCG”). The relevant passages from the SOCG setting out the differences between the parties provided as follows:
“ Use of ‘Oversupply’ as part of Housing Land Supply Calculation
1.4 It is the Appellants' position that ‘oversupply’ from the previous monitoring years should not be included within the Council's five-year housing land supply calculation. This is consistent with the Secretary of State appeal decision at Oakridge, Highnam (Tewkesbury Borough Council Reference: 16/00486/OUT; Appeal Reference: APP/G1630/W/17/3184272) dated 20 th December 2018.
1.5 The Council do not agree with that approach and considers that past over delivery can be credited towards the five-year supply. That approach was also accepted, without comment, in earlier appeal decisions prior to the Highnam decision. There is no express policy on this issue in the Framework, although the Planning Practice Guidance contains guidance that supports the Council's approach. There is no case law that directly addresses this issue. Moreover, no conclusions as to the interpretation of planning policy in an appeal decision is binding.
…
1.8 In terms of how past shortfalls and past over supply can be addressed, paragraph 031 (Reference ID: 68-031-20190722) explains that the level of deficit or shortfall will need to be calculated from the base date of the adopted plan and should be added to the plan requirements. Paragraph 032 (Reference ID: 68-032-20190722) follows and states that where areas deliver more completions than required, the additional supply can be used to offset any shortfalls against requirements from previous years.
1.9 Contrary to the Appellant's position, the Council is of the view that its approach is consistent with the Framework. This is for the following reasons.
1.10 First, when calculating five-year supply, the principle of adjusting the annual requirement for future years, by reference to past years' delivery rates, is clearly established by national policy: see the approach expressly advised in respect of past years' under-delivery (paragraph 31 above). A symmetrical approach to past years' over-delivery is consistent with policy.
1.11 Secondly, the paragraph from the Planning Practice Guidance cited above at paragraph 34 supports the Council's approach. Notwithstanding the Council's current housing land supply position, the Council's area is one of those areas that previously ‘delivered more completions than required’ and ‘this additional supply’ (i.e. the surplus) ‘can be used to offset any shortfalls…’ The words ‘against requirements from previous years’ used in the Guidance, when read in the context of the heading for this paragraph, must be taken to mean ‘the requirements delivered in previous years’. The heading makes it clear that the paragraph is intended to address the relationship between past over-supply and planned (i.e. future) requirements.
1.12 Thirdly, reliance upon policy to boost significantly the supply of homes, and on policy stating that the five-year requirement is a minimum, are nothing to the point. The policy objective to boost supply in paragraph 59 of the Framework is linked to the need for a sufficient amount and variety of land, and not the calculation of a five-year supply in a development control context.”
It was the claimant's contention in the SOCG that they were able to demonstrate a five-year housing land supply of 4.37 years if the over-supply from previous years within the plan period was taken into account. It was the interested parties' position that removal of the oversupply would reduce the five-year housing land supply to 2.4 years; there were disputed sites included in the housing supply and once those were removed the housing supply was further reduced, in the opinion of the interested parties, to 1.84 years.
Shortly prior to the completion of the SOCG, and undoubtedly forming part of the background to it, the claimant published its Five-year Housing Land Supply Statement in October 2020. This document related the housing supply to the housing requirement derived from the Gloucester, Cheltenham and Tewkesbury Joint Core Strategy (“the JCS”). As set out in greater detail below, the JCS provided a total housing requirement for the claimant of 9,899 dwellings for the plan period 2011 to 2031, equating to a need to provide 495 dwellings per annum. The Five-year Housing Land Supply Statement demonstrated that over the first nine years of the plan period housing completions in the claimant's administrative area had exceeded the housing need when measured at 495 dwellings per annum by 1,115 dwellings. In other words, the requirement over nine years measured at 495 dwellings per annum amounted to 4,455 dwellings, and during that period 5,570 dwellings had been completed. This over-supply of housing was taken into account in the Five-year Housing Land Supply Statement in the calculation of the five-year supply, giving rise to the claimant's figure in the SOCG of 4.37 years, or an under-supply of 180 dwellings.
The claimant made closing submissions in writing to the Inspector at the public inquiry which included submissions in relation to the housing land supply position. In that regard the claimant's submissions recorded as follows:
“ 10. Housing Land Supply. Currently the Council cannot demonstrate a 5-year housing land supply. The issue before the Inquiry, which was considered at the round table session, was the extent of the shortfall. There is a range with the appellant claiming the Council can only demonstrate 1.82 years whereas the Council claims it can demonstrate 4.37 years. The Council acknowledges that the shortfall, on its own figures, is significant.
The basis for the divergence between the two sides is how previous over delivery against the HLS is taken into account. The Appellants claim it cannot be taken into account, whereas, the Council claims it can be and should be.
The Council's case is that taking account of previous oversupply is not against either the requirement of paragraph 73 of the NPPF and is consistent with PPG. In particular, paragraphs 31 and 32. The PPG is silent on over supply but provides advice on under supply. Paragraph 32 “Where areas deliver more completions than required, the additional supply can be used to offset any shortfalls against requirements from previous years” (Ref ID 68-032-20190722). The...
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