In Hallam Land Management Ltd v Secretary of State for Communities and Local Government & Another [2017] EWHC 2865 (Admin), Supperstone J rejected the claimant developer’s contention that the secretary of state had acted unlawfully in refusing the claimant’s scheme on appeal without adopting a single housing land supply (HLS) figure.
The appellant’s proposals breached an adopted green gap policy. It had argued that housing supply policies should be considered out of date, engaging the NPPF 14 tilted presumption, given a 4.2-year HLS. The secretary of state found a “limited” HLS shortfall and dismissed the appeal – giving the scheme’s housing supply contribution significant weight, but overriding weight to the effect on the separation and settlement identity characteristics that the policy sought to protect. Three weeks later he allowed an appeal in relation to a local scheme three times larger, also in the green gap, but giving the same policy only limited weight.
The claim alleged that the secretary of state had acted unlawfully by failing to determine a five-year HLS position, failing to cross-refer to the inspector’s report on the later decision (regarding weight given to the policy). It claimed that a one year (20%) shortfall could not, rationally, be treated as “limited”.
The judgment confirms that the secretary of state was not required to fix a “precise figure” where there was an inadequate housing supply on either sides’ figures. Establishing less than a five-year HLS was the ‘litmus test’ for NPPF 49 purposes (Eastleigh BC v Secretary of State for Communities and Local Government [2014] EWHC 4225 (Admin and Hopkins Homes applied). It was not a case where the authority’s ability to demonstrate a five-year HLS at all was centre stage (distinguishing Jelson Ltd v Secretary of State for Communities and Local Government [2016] EWHC 2979 (Admin)).
The secretary of state had therefore been entitled to note the shortfall, describe it as “limited”, and agree with his inspector that the scheme’s contribution to the council’s housing shortage would be “significant” without having to indulge in a Local Plan style examination of the issue. Supperstone J held that the difficulties in reconciling the two findings on the significance of the shortfall were not a legal issue, on the facts, given that the principle of consistency relates to appeal decisions, not inspectors’ reports.
The secretary of state gave the shortfall the same weight in both cases in any event (and the lower weight to the green gap policy breach in the later case was explained by reference to lesser effects on the relevant characteristics).
The judgment acknowledges the extent of shortfall may be relevant to the NPPF 14 balance (Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), but the courts are clearly reluctant to trespass on that exercise of planning judgment.
Roy Pinnock is a partner in the planning and public law team at Dentons
