The Court of Appeal this week gave the green light to a 21-home development in the village of Bickerton, near Harrogate, despite the objections of local agri-business Oxton Farm.
Oxton has been challenging Harrogate Borough Council’s decision to grant planning permission through the court system. It lost a High Court case last year, and lost in the Court of Appeal this week.
Central to its case is that the development breaches the council’s development plan, and that the planning officer who recommended it miscalculated Harrogate’s five-year supply of housing, and may have misled the planning committee into thinking that the council was unable to meet its objectives.
Councils are obliged by the government to make sure there is enough housing for the next five years before rejecting developments. If they cannot do this, the so-called “tilted balance” comes into force, which states that sustainable development should be allowed unless the adverse effects of building outweigh the benefits.
The balance is binary: if there is a five-year supply, it doesn’t kick in; if there is not by any amount, it does.
In July 2018, Harrogate updated its land supply figures and found that it had a 5.02-year supply of housing.
At around the same time, the planning officer approved the development, saying: “On balance, it is considered that there are no adverse impacts that would significantly and demonstrably outweigh the benefits of this scheme. [Harrogate] can only demonstrate a 5.02-year supply of housing and this is not sufficiently above the five-year supply that paragraph 11 of the NPPF can be ignored. Given this position and the proximity of nearby service settlements, officers consider the scheme should be approved. Recommendation: approve subject to conditions.”
Oxton Farm argues that the council used the wrong measure to work out the five-year supply, and that the supply issue could not be used to trigger the “tilted balance”.
However, the Court of Appeal disagreed.
In the ruling, Lord Justice Lewison said the planning officer in her recommendation did not say that the tilted balance based on the five-year supply had to be applied, she said it should not be “ignored”.
As for the method used to calculate the supply, it made no difference. All the methods would have shown Harrogate exceeded five years and the planning officer did not say the target had not been met.
In addition, other parts of Harrogate’s development plan were out of date, according to the planning officer, which also triggers the titled balance.
“It is, I acknowledge, possible that some committee members could have read the officer’s report, read overall, as advising that the tilted balance was engaged both because the five-year supply of housing land was marginal and also because relevant policies were out of date,” the judge wrote.
“But if two reasons were given for the engagement of the tilted balance, one of which was good, and one of which was bad, I do not consider that it can be said that overall the advice misdirected the committee in a serious way.
“I would dismiss the appeal.”
Oxton Farm v Harrogate Borough Council and D Noble Ltd
Court of Appeal (Lewison LJ, Underhill LJ, Carr LJ) 25 June 2020
Richard Wald QC (instructed by Pinsent Masons LLP) for the appellant
John Hunter (instructed by Harrogate Borough Council (Legal Services)) for the respondent
