The High Court has adopted a flexible approach to dealing with “objectively assessed needs” (“OAN”) on a planning appeal, in Dartford Borough Council v Secretary of State for Communities and Local Government and another [2016] EWHC 649 (Admin). In considering the appeal, against refusal of permission for housing, the inspector had to decide whether the authority could demonstrate a five-year supply of deliverable housing sites against OAN. If not, National Planning Policy Framework (“NPPF”) policy recommends that restrictive local housing policies are supplanted by a presumption in favour of permission.
The inspector was dealing with a core strategy with a maximum housing delivery figure (based on environmental constraints) and a lower figure (at which active management of under-delivery would be needed). At the lower figure, the authority could show a five-year supply. Neither the appellant nor the authority appear to have submitted OAN evidence, despite the ability to do so (West Berkshire District Council v Secretary of State for Communities and Local Government and another [2016] EWHC 267 (Admin)).
The inspector found that the scheme merited approval regardless of the OAN position. He also explained that the authority was not likely to meet full OAN judged against the maximum housing figure and so applied the NPPF presumption. The authority challenged the decision under section 288 of the Town and Country Planning Act 1990, on the basis that his reasons were inadequate (including why the upper figure was the correct measure of OAN). Gilbart J held that the upper/ lower level figures provided a context for assessing housing need and that nothing in the NPPF should prevent decision-makers from being able to use a range of figures to assess whether there would still “be advantage in the grant of permission”.
The judgment purposively and pragmatically allows for range-based approach to assessing OAN where there is no real demographic evidence available on appeal, and emphasises the undesirability of appeal inspectors being diverted into a statistical “sojourn in a garden of delights”. Care is needed, though. It does not address the situation where reliance on OAN is required to “switch off” restrictive housing policies and engage the NPPF presumption. It also recognises that “a more thorough analysis would have been required” in those circumstances, consistent with the finding in West Berkshire that the inspector had to “identify an annual housing requirement in the district. If he failed to do so he would not have been able to identify whether the council was able to demonstrate whether it had a five year supply of housing land”.
The maximum figure the inspector used for the upper limit of the OAN “range” in Dartford appears to have been derived from a historic regional spatial strategy policy set by reference to policy-based environmental constraints. It is hard to reconcile this with the need to avoid OAN assessments being artificially limited by such “policy on” considerations (Hunston Properties Ltd v Secretary of State for Communities and Local Government and another [2013] EWCA Civ 1610; [2014] 1 EGLR 79).
Roy Pinnock is a partner in the planning and public law team at Dentons
