The Royal Borough of Kensington and Chelsea v The Secretary of State for Communities and Local Government (First Defendant) Charles Noell (Second Defendant)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeNeil Cameron
Judgment Date13 July 2017
Neutral Citation[2017] EWHC 1703 (Admin)
Date13 July 2017
Docket NumberCase No: CO/808/2017

[2017] EWHC 1703 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Neil Cameron QC

(Sitting as a Deputy High Court Judge)

Case No: CO/808/2017

The Royal Borough of Kensington and Chelsea
The Secretary of State for Communities and Local Government
First Defendant


Charles Noell
Second Defendant

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 David Cooper and Co.) for the Second Defendant

Hearing date: 27 th June 2017

Approved Judgment

The Deputy Judge ( Neil Cameron QC):



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 ("TCPA 1990") to quash a decision of 17th January 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 failure by the Claimant to determine within the prescribed period his application for planning permission to develop land at 67, Clarendon Road, London W11 4JE ("the Site") by amalgamation of four existing flats to form a single family dwelling and associated internal alterations.


By an order dated 21 st March 2017 Lang 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 stating that the housing land supply would be boosted further by recent deliverable planning permissions when those planning permissions were already accounted for in the calculated supply.


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 4 th March 2016 the Second Defendant applied to the Claimant for planning permission to develop the Site by "Amalgamation of existing four flats to form a single family dwelling and associated internal alterations".


A report was prepared for the meeting of the Claimant's Planning Applications Committee which met on 21 st June 2016. In that report the Claimant's Executive Director of Planning and Borough Development recommended that the Second Defendant's planning application be refused. The report was withdrawn from consideration by the committee in order to allow consideration to be given to the judgment in R (on the application of the Royal Borough of Kensington and Chelsea) v. Secretary of State for Communities and Local Government and David Reis and Gianna Tong [2016] EWHC 1785 (Admin).


On the 28 th July 2016 the Second Defendant appealed against the Claimant's failure to determine the application for planning permission within the prescribed period.


The appeal was determined under the hearing procedure.


The Second Defendant's Statement of Case submitted in support of his appeal stated, at paragraph 7.38:

"7.38 It is also noted that policy CH1 which relates to Housing Targets refers specifically to the Council having sufficient housing sites allocated to ensure the housing targets are met. Whilst the targets set out are not up to date and have been amended by the London Plan, the wording relates to having sufficient housing sites. As stated in the officer's report to committee the current supply from deliverable sites during this period is estimated to be 4,416 dwellings. The 2014/2015 Authority Monitoring Report shows that the Borough's five year housing supply requirement (1st April 2015 to 31st March 2020) is 4,398. The current supply therefore exceeds the requirement. The Council state that it is anticipated that the supply over the five year period will be reduced by approximately 50 units per annum over the five year period through amalgamation, and state that this reduction in supply will result in the borough being unable to meet its supply targets. No evidence is provided to demonstrate this and no information regarding additional units in small sites being provided is given. It is therefore considered to be premature to make an assessment of the supply without the relevant figures being provided. The proposed loss in this individual case is 3 units which would not have an impact on the supply of housing as required as part of policies CH1 of the CLP and policy 3.3 of the London Plan."


The Claimant's Written Statement also addressed housing land supply, stating, at paragraph 2.36:

"The appellants confuse existing housing provision with housing need. In paragraph 7.32 of their Statement of Case they quote the existing housing figures from the SHMA. However, the material consideration is the future dwelling size needs for the borough listed in the table within paragraph 2.19 above which demonstrates that an increase in one and two bedroom units is required. Whilst there is also a need for more family units this should not result in a net reduction of smaller units, particularly due to the greater proportional impact on numbers which would result from the loss of three units. As an aside it should be noted that appellant's reasoning also applies to the provision of larger units. They cite the SHMA text which notes that "there is relative to other inner London boroughs, a reasonable proportion of very large houses (11%)." Using the appellant's flawed logic this would imply that the existing ample provision of homes of equivalent size to the appeal scheme means there is no further need to provide such units."


The inspector's decision was communicated by a decision letter dated 17 th January 2017.


At paragraph 6 of the decision letter, the inspector identified the main issue as being:

"6. The effect of the proposed development on the supply and choice of housing within Kensington and Chelsea."


At paragraph 11 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 13 of the decision letter):

"13. Paragraph 35.3.34 preceding policy CH3 refers to protecting residential units in most cases. It also states that there are a limited number of situations in which losses will be permitted in order to meet the various policy objectives of the plan. Policy CH3 itself is not expressed in the same terms. However paragraph 35.3.34 clearly sets the context for the way in which the policy should be read. I consider that taking these parts of the CLP together, the proposal 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. In doing so I will consider the approach of the CLP which at paragraph 35.3.18 accepts that a balance needs to be struck between the loss of residential units and the need for larger family dwellings."


The inspector held, at paragraph 17 of the decision letter, that the loss of existing small self-contained flats would cause the proposal not to comply with saved Unitary Development Plan policy H17.


The inspector considered Housing Needs and Supply at paragraphs 26 to 35 of the decision letter. Paragraphs 26 to 33 of the decision letter state:

"26. The adopted target within the CLP of 350 net additional dwellings per year has been updated. The current LP has subsequently set the target as 733 dwellings per year which is applicable. With a 20% buffer for persistent under delivery as required by the Framework the 5 year supply requirement is 4,398 dwellings between 1 April 2015 to 31 March 2020.

27. 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.

28. The Council has drawn attention to a problem in the number of net completions of sites with permission. 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. The Council's evidence shows that between 2009/10 and 2014/15 net residential approvals have exceeded the applicable target in all years apart from in 2012/13. I recognise some of the permissions will have expired.

29. There has however been a marked increase in completions over the last year where figures were provided by the Council (2014/15). Completions exceeded the 600 target by 382 homes. In the previous year there was a deficit of 336 units. Over the 2 years the target was therefore exceeded by 46 dwellings. It would not be appropriate to read too much into the data of 1 or 2 years however there should also be an assumption that recent planning permissions will be delivered unless there is evidence to the contrary given the wording of the Framework. I therefore consider that it is reasonable to conclude that there will be at least some further degree of over-supply.

30. A number of vacant units returning back into use may also be a relevant factor. In the Drayton Gardens appeals the Inspector took the view that the effect of the vacant units reduces the new stock housing annual target to 687. The Council does not agree with that approach. They refer to the Planning Practice Guidance...

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