Town and country planning – Planning permission – Housing supply – Local authority refusing permission for housing development – Secretary of state dismissing appellant’s appeal – High Court upholding decision – Whether secretary of state failing to ascertain extent of shortfall against five-year housing land –Whether secretary of state giving adequate reasons for decision – Appeal allowed
The second respondent local authority refused the appellant’s application for outline planning permission for a development of up to 225 dwellings, a 60-bed care home and 40 care units, the provision of public open space and woodland, and improvements to Hamble Station, on land to the west of Hamble Lane, in Hamble.
The site of the proposed development was about 23 hectares of pasture, on the Hamble Peninsula, between the Hamble River and Southampton Water. It was not within any settlement, nor allocated for development in the 2006 local plan.
The appellant appealed against an order of Supperstone J, dismissing its application under section 288 of the Town and Country Planning Act 1990 by which it had challenged the decision of the first respondent secretary of state dismissing its appeal under section 78 of the 1990 Act against that refusal.
The appeal raised an issue whether, given that the second respondent could not demonstrate the requisite five-year supply of housing land under government policy in the national planning policy framework (NPPF), the first respondent had established the shortfall with sufficient precision, and whether his relevant reasons were adequate.
Held: The appeal was allowed.
(1) The primary purpose of para 49 of the NPPF was to trigger the operation of the “tilted balance” under para 14. Weight was always a matter for the decision-maker. It would vary according to the circumstances including, for example, the extent to which relevant policies fell short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy. The weight to be given to conflict with policies for the supply of housing that were out-of-date was a matter of planning judgment.
The policy in para 14 required the appropriate balance to be struck, giving due weight to the considerations on either side of it. But in a case where the local planning authority was unable to demonstrate five years’ supply of housing land, the policy left to the decision-maker’s planning judgment the weight he gave to relevant restrictive policies. The relationship between housing need and housing supply in planning decision-making was ultimately a matter of planning judgment, exercised in the light of the material presented to the decision-maker, and in accordance with the policies in para 47 and 49 of the NPPF and the corresponding guidance in the planning practice guidance (PPG). It was not the role of the court to add to or refine the policies of the NPPF, but only to interpret them when called upon to do so, to supervise their application within the constraints of lawfulness and to ensure that unlawfully taken decisions did not survive challenge.
The policies in paras 14 and 49 did not specify the weight to be given to the benefit, in a particular proposal, of reducing or overcoming a shortfall against the requirement for a five-year supply of housing land. That was a matter for the decision-maker’s planning judgment with which the court would not interfere except on public law grounds. But the weight given to the benefits of new housing development in an area where a shortfall in housing land supply had arisen was likely to depend on factors such as the broad magnitude of the shortfall, how long it was likely to persist, what the local planning authority was doing to reduce it and how much of it the development would meet. The degree of precision required in calculating the supply of housing land when an application or appeal was being determined was left to the decision-maker.
The decision maker had to resolve any disagreement between the parties whether or not there was a five-year supply with as much certainty as the decision required. No hard and fast rule applied but it seemed implicit in paras 47, 49 and 14 that the decision-maker, doing the best he could with the material before him, had to be able to judge what weight should be given both to the benefits of housing development that would reduce a shortfall in the five-year supply and to any conflict with relevant “non-housing policies” in the development plan that impeded the supply: Suffolk Coastal District Council v Hopkins Homes Ltd [2017] EGLR 27 and Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EGLR 33 followed.
(2) In the present case, the first respondent could not fairly be criticised, in principle, for not having expressed a conclusion on the shortfall in the supply of housing land with great arithmetical precision. He was entitled to confine himself to an approximate figure or range. However, at least by the time the parties were given the opportunity to make further representations, an important principal controversial issue between them was the extent of the shortfall in housing land supply.
A related issue was the weight to be given to restrictive policies in the local plan. It was incumbent on the first respondent to provide intelligible and adequate reasons to explain his conclusions on those issues, having regard to the parties’ representations. The parties were entitled to know why the first respondent had concluded as he had, not only on the question of housing land supply but also on its consequences, in spite of two very recent appeal decisions in which the question of supply had been decided in a materially different way.
In the absence of proper reasons, one could not be sure that the first respondent had come to his conclusion lawfully, having regard to all material considerations. It followed that, in failing to provide such reasons, the first respondent had erred in law and his decision was liable to be quashed. There was no basis on which the court, in the circumstances, could properly withhold an order to quash his decision.
Thomas Hill QC and Philippa Jackson (instructed by Irwin Mitchell LLP) appeared for the appellant; Zack Simons (instructed by the Government Legal Department) appeared for the first respondent; Paul Stinchcombe QC and Ned Helme (instructed by Eastleigh Borough Council) appeared for the second respondent.
Eileen O’Grady, barrister
