The Royal Borough of Kensington and Chelsea v The Secretary of State for Communities and Local Government (First Defendant) Aref Lahham (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Neil Cameron |
| Judgment Date | 13 July 2017 |
| Neutral Citation | [2017] EWHC 1704 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 July 2017 |
| Docket Number | Case No: CO/1172/2017 |
[2017] EWHC 1704 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Cameron QC
(Sitting as a Deputy High Court Judge)
Case No: CO/1172/2017
and
Mr Timothy Straker QC (instructed by Shared Legal Services Department, Royal Borough of Kensington and Chelsea) for the Claimant
The First Defendant did not appear
Mr Christopher Lockhart-Mummery QC (instructed by Clyde and Co.) for the Second Defendant
Hearing date: 27 th June 2017
Approved Judgment
The Deputy Judge ( Neil CameronQC):
Introduction
This is an application made by the Claimant local planning authority for an order pursuant to section 288 of the Town and Country Planning Act 1990 ("the TCPA Act") to quash a decision of 3 rd February 2017 of an inspector appointed by the Secretary of State for Communities and Local Government. By that decision, the inspector allowed the Second Defendant's appeal against the decision by the Claimant to refuse to grant planning permission to develop land at 1 and 2, Pembroke Cottages, London W8 6PF ("the Site") by amalgamation of two semi-detached dwellings to form one single dwelling.
By an order dated 26 th April 2017 Holgate J granted the Claimant permission to make this application.
In the statement of facts and grounds the Claimant relies upon two grounds of claim:
i) The inspector made a mistake of fact when calculating housing land supply as he deducted vacant units returning to use from the requirement whilst including those units in the supply.
ii) The inspector made a mistake of fact by adding extant planning permissions to the housing land supply figure when those planning permissions were already accounted for in the calculated supply.
During the course of argument Mr Straker QC indicated that the Claimant no longer pursued ground 2.
The First Defendant, the Secretary of State, concedes that the decision should be quashed on the first ground of claim.
The Second Defendant contests the claim.
The Background Facts
By an application dated 20 th May 2016 the Second Defendant applied to the Claimant for planning permission to develop the Site by "Amalgamation of two semi-detached properties (1 and 2 Pembroke Cottages) to form one single dwelling".
By a decision notice dated 17 th August 2016 the Claimant refused to grant planning permission. The following reason for refusal was set out in the decision notice:
"The proposal would involve the loss of one residential unit which would reduce the supply and choice of housing available within the Borough. The development would therefore not contribute to meeting housing targets and housing needs for the Borough and London as a whole through ensuring a net increase in residential accommodation. This would be contrary to the aims of Development Plan, in particular Policies CH1 and CH3 of the Consolidated Local Plan and Policies 3.3 and 3.14 of the London Plan."
On the 8 th September 2016 the Second Defendant appealed against the Claimant's decision to refuse to grant planning permission.
The appeal was determined under the written representations procedure.
The Second Defendant's Statement of Case submitted in support of its appeal included the following paragraphs relating to housing land supply. The figure of 0% in paragraph 4.34 is a typographical error and should be 20%:
"4.34 Paragraph 47 of the NPPF requires Councils to "identify and update annually a supply of specific deliverable sites to provide five years worth of housing against their housing requirements with an additional buffer of 5%" (0% where there has been a persistent under delivery of housing).
4.35 The Council's 2015 AMR (Appendix 5) states:
"10.13 The housing supply requirement from 1 April 2015 to 31st March 202 is 4,398 dwellings. This is made up of 5 years of the Borough's annual supply target of 733 new homes, plus the 20% buffer required in the NPPF where there has been a record of persistent under-delivery against the Borough's target. The current supply of deliverable sites during this period is expected to be 4,416 dwellings based on those sites assessed as deliverable in the housing trajectory above…"
4.36 Therefore, the Council is not only meeting the targets set out in the London Plan but also has a 5 year supply of housing available.
4.37 The completion figures produced by the DCLG are also encouraging. The figures for 2015–2016 showed gross completion to be 1040 units; again, a significantly higher completion rate than the London Plan target (appendix 6)."
The Claimant's Written Statement also addressed housing land supply, stating:
"2.5 The 2014/15 Authority Monitoring Report shows that the Borough's five year housing supply requirement (1 April 2015 to 31st March 2020) is 4,398 dwellings (733 plus a 20% buffer). The current supply from deliverable sites during this period is estimated to be 4,416 dwellings. This demonstrates that although the Borough is able to meet its housing supply target, this is only very marginal with a buffer of less than 20 units. Given that the negative impact of amalgamations is yet to be factored into the small sites estimate element of the trajectory (due to planning permission only being required since August 2014 and the small sites data being drawn from approvals between 2004 and 2012), it is anticipated that this will reduce supply over the five year period by approximately 50 units per annum. Such a reduction in supply will result in the Borough being unable to meet its supply targets."
The inspector's decision was set out in a decision letter dated 3 rd February 2017.
At paragraph 2 of the decision letter, the inspector identified the main issue as being:
"The effect of the development upon the supply and choice of housing within Kensington and Chelsea."
At paragraph 5 of the decision letter, the inspector found that the proposed development would not breach policy CH2 in the Consolidated Local Plan. In relation to policy CH3 in the Consolidated Local Plan he concluded (at paragraph 6 of the decision letter):
"Taking these parts of the CLP together, the loss of a dwelling would not comply with paragraph 'a' of CLP policy CH3 and none of the exceptions at sub-paragraphs 'a i' to 'a v' apply. The conflict with CLP CH3 will need therefore to be weighed in the overall planning balance."
The inspector held, at paragraph 8 of the decision letter, that the loss of one unit of housing caused the proposed development to conflict with policy 3.14B in the London Plan.
The inspector considered Housing Needs and Supply at paragraphs 10 to 16 of the decision letter. Paragraphs 10 to 14 of the decision letter state:
"10. The Council's 5 year housing requirement based upon LP policy 3.3 and factoring in a 20% buffer is 4,398 dwellings. The Council's 2014/15 Authority Monitoring Report (AMR) figure for deliverable sites is 4,416 dwellings. This therefore indicates that there is likely to be an over-supply of 18 dwellings over that period.
11. According to the Council's quoted figures, the numbers of net residential approvals in terms of units over the past 2 years of data that I am provided with, have exceeded the annual requirement. The number of completions has run below target in some years. However footnote 11 on page 12 of the Framework states that sites with planning permission should be considered deliverable until permission expires unless there is clear evidence that the schemes will not be implemented within 5 years.
12. The Inspector in the Drayton Gardens appeal decision refers to the new stock housing annual target could be reduced to 687 giving a 5 year target of 4,122. This figure is derived, according to paragraph 63 of the Inspector's decision, from the LP which sets a figure of 46 vacant units returning to use. Taking account of deliverable sites of 4,416, there would be headroom of 294. I cannot go as far as the Inspector did in the Drayton Gardens appeals by increasing the allowance for returning vacancies even further because I do not have the additional evidence that lead to that the conclusions on that.
13. The Council is also concerned that the number of amalgamations of units could undermine the housing supply figures. The Council state that around 50 units are lost each year but accept that the figure is difficult to quantify. Prior to 2014, the Council considered amalgamations did not always require planning permission. The number of Lawful Development Certificates applied for to confirm whether permission was required, were the measure of this as well as the number of planning applications since 2014. It is not clear whether all applications would have been implemented. No reference is made to formal monitoring. It is not clear that these figures can be relied upon to give a clear picture regarding the number of units lost through amalgamations and I do not give them much weight.
14. The current housing supply requirements are being met and the number of planning permissions being issued provides further encouragement. The extent of over supply based upon evidence before me is not as great as it has been identified in other appeal decisions but it is significant. Further applications for the amalgamation of units may come forward and decisions can be reached on the evidence available at that time."
The inspector's conclusions are set out at paragraphs 17 to 19 of the decision letter:
"17. The proposal conflicts with CLP policy CH3 and LP policy 3.14B as it would lead to a loss of 1 dwelling. From the available information it appears at this time that the Council is likely to meet and exceed...
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