Wokingham Borough Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr John Howell |
| Judgment Date | 20 July 2017 |
| Neutral Citation | [2017] EWHC 1863 (Admin) |
| Docket Number | Case No: CO/3854/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 July 2017 |
[2017] EWHC 1863 (Admin)
Mr John Howell QC
Sitting as a Deputy High Court Judge
Case No: CO/3854/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Saira Kabir Sheikh QC (instructed by Select Business Service: Legal Solutions) for the Claimant
Mr Gregory Jones QC (instructed by Blake Morgan) for the Second Defendant
The First Defendant did not appear and was not represented
Hearing dates: 6 th July 2017
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.
Mr John Howell QC
Mr John Howell QC:
This is an application made under section 288 of the Town and Country Planning Act 1990 (" the 1990 Act") by the local planning authority, Wokingham Borough Council, with the permission of Lang J, to quash a decision of an Inspector who allowed an appeal brought under section 78 of the 1990 Act by the Second Defendant, Cooper Estates Strategic Land Limited.
The Inspector, Mr GD Jones, had been appointed to determine the appeal by the First Defendant, the Secretary of State for Communities and Local Government. He granted a conditional outline planning permission for the construction of up to 57 new homes on land at Stanbury House, Basingstoke Road, Spencers Wood (which is about 5 miles from Reading). He did so given inter alia his view that the Council had not demonstrated a five-year supply of deliverable housing sites as described in the National Planning Policy Framework (" NPPF").
The grounds on which an application under section 288 of the 1990 Act may be made and the court's powers under it are well-established. They were summarised by Lindblom J in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at [19].
The Council's application concerns the "Full Objectively Assessed Need" (" FOAN") for housing in Wokingham and the amount of homes the Inspector estimated would be delivered in the Borough over a five year period from October 2015. In particular it is concerned with the "buffer' of 20% which is to be added to the FOAN (as contemplated in paragraph [47] of the NPPF) and with what is referred to, misleadingly, as a "lapse rate".
The "buffer" of 20% of the FOAN (rather than one of 5%) falls to be added to it "to provide a realistic prospect of achieving the planned supply" in the five year period "where there has been a record of persistent under delivery of housing".
In the sense in which it was used in this case, the so-called "lapse rate" does not describe the rate at which planning permissions in the supply may lapse. It represents the proportion of the number of dwellings in the supply of specific deliverable sites that will not be provided within the five-year period. It may be applied whether or not any site to which the rate is applied has permission and whether or not the reason why the dwellings are not provided on it is that planning permission for its development has lapsed.
On behalf of the Council, Ms Saira Kabir Sheikh QC, contended that (i) the Inspector unlawfully imposed both a 10% "lapse rate" to all the sites in the relevant housing land supply as well as a 20% "buffer" and (ii) that he made two objectively verifiable errors of fact, when considering whether or not there was a five year supply of land for housing. She also seeks permission to contend (iii) that the Inspector erred in law, having regard to the decision of the Supreme Court in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37, [2017] 1 WLR 1865 (" Hopkins Homes"), in treating two development plan policies for the location of new development in the Borough as not being up-to-date given the absence of a five year supply.
The Council's application is not now opposed by the Secretary of State. But it is by the Second Defendant.
On behalf of the Second Defendant, Mr Gregory Jones QC, contended (i) that the Inspector was entitled to apply both a 10% "lapse rate" and the 20% "buffer" as he did in his calculations; (ii) that the Inspector made no material error of fact; and (iii) that it is irrelevant in any event whether or not the first two of the Council's contentions are well founded: the "tilted balance" required by paragraph 14 of the NPPF, which the Inspector applied in determining the appeal, would have been applicable in any event, as the development plan policies for housing were in any event out-of-date. Mr Jones also opposed the grant of permission to enable the third of the Council's contentions to be raised. He submitted that the challenge had not been made promptly and it was "absolutely hopeless". The Inspector had correctly classified the two development plan policies in issue as being "out of date" but in any event their classification as such has no significance when considering the applicability of paragraph 14 of the NPPF or the weight to be given to them.
THE FRAMEWORK FOR DETERMINING APPLICATIONS FOR PLANNING PERMISSION FOR RESIDENTIAL DEVELOPMENT
In dealing with any application for planning permission, planning authorities must have regard to "the provisions of the development plan, so far as material to the application" and to "other material considerations": see section 70(2) of the 1990 Act. "If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise": see 38(6) of the Planning and Compulsory Purchase Act 2004.
As Lord Carnwath pointed out in Hopkins Homes supra at [21], the NPPF "itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than "guidance" and as such a "material consideration" for the purposes of section 70(2) of the 1990 Act…. It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme."
The NPPF is divided into three main parts: "Achieving sustainable development" (paragraphs [6] to [149]), "Plan-making" (paragraphs [150] to [185]) and "Decision-taking" (paragraphs [186] to [207]).
Paragraph [14] of the NPPF describes the "presumption in favour of sustainable development", which is said to be "[at] the heart of" the NPPF and which should be seen as "a golden thread running through both plan-making and decision-taking". It states that:
"For decision-taking this means [unless material considerations indicate otherwise]:
• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission 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".
The penultimate point ("any adverse impacts…") is referred to as "the tilted balance". It applies inter alia if relevant development plan polices are "out-of-date".
Within the same part of the NPPF dealing with sustainable development, there is a section headed "Delivering a wide choice of quality homes". Paragraph [47] in it states that:
"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 {11} 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. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;
• identify a supply of specific, developable sites or broad locations for growth, for years 6–10 and, where possible, for years 11–15;
• for market and affordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a five-year supply of housing land to meet their housing target; and
• set out their own approach to housing density to reflect local circumstances."
Footnote 11 states significantly that:
"To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five...
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