Town and country planning – Planning permission – Tilted balance – Developer applying for planning permission for housing development – Respondent local authority granting conditional planning permission – Appellant applying for judicial review – High Court dismissing application – Appellant appealing – Whether planning officer wrongly advising that tilted balance engaged on basis that housing land supply marginal – Whether respondent erring in failing to take account of ONS data – Whether respondent giving sufficient reasons for decision – Appeal dismissed
The interested party applied to the respondent local authority for outline planning permission for 21 new houses and a village shop on land at Turnpike Lane, Bickerton, North Yorkshire. The respondent’s core strategy policy provided for 390 new homes per annum (SG1), listed settlements around which sustainable growth should be allowed (SG2) and stated that land outside settlements not listed in SG2 was countryside with strict control of new development (SG3). The intended development was not within SG2. An updated housing needs assessment concluded that 669 new dwellings per year were needed.
The respondent’s planning officer concluded that policies SG1 to SG3 could only be given limited weight: On balance, there were no adverse impacts that would significantly and demonstrably outweigh the benefits of the scheme. The respondent could only demonstrate a 5.02 year supply of housing which was not sufficiently above the five-year supply that under paragraph 11 of the National Planning Policy Framework (NPPF) could be ignored. Accordingly, given that position and the proximity of nearby service settlements, the scheme should be approved. Following that recommendation, the respondent granted conditional planning permission. The appellant’s application for judicial review was dismissed: [2019] EWHC 1370 (Admin).
The appellant appealed contending, amongst other things, that the planning officer had wrongly advised that the titled balance was engaged on the basis that the housing land supply position was merely marginal and that, in any event, the respondent had failed to take into account the effect of the 2016 projections from the Office of National Statistics (ONS), which were published shortly before the planning committee meeting and resulted in the respondent’s deliverable supply increasing to 7.48 years.
Held: The appeal was dismissed.
(1) The NPPF required local planning authorities to identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement with appropriate buffer. Paragraph 11(d) of the NPPF provided that the tilted balance was engaged where there were no relevant development plan policies or the policies which were most important for determining the application were out of date. The lack of a five-year supply of housing land was a policy that was deemed to be out of date by virtue of footnote 7. Whether the tilted balance was engaged because of a shortfall in the supply of deliverable sites for housing was a binary question: Either there was a five-year supply of housing land or there was not. If there was a five-year supply then the tilted balance was not engaged on that basis. But the lack of a five-year supply of housing land was not exhaustive of policies that might be out of date. Other policies which bore on the decision might also be out of date, with the consequence that the tilted balance was triggered on a different basis. Whether a policy was out of date was a matter of planning judgment. The planning officer made it clear that the respondent could demonstrate a five-year supply of housing land with the consequence that the tilted balance was not automatically triggered on that basis. However, she considered that the development limits were out of date: In order to maintain the supply of housing land, greenfield sites were needed, meaning that settlement boundaries were out of date and policies SG1 to SG3 were themselves based on a housing target that was out of date. Accordingly, those policies could only be given limited weight and the basis on which the tilted balance was triggered was that the relevant policies were out of date.
(2) The proposition that the ONS projections were the mandatory starting point for the calculation of objectively assessed housing need was erroneous. Government policy stated clearly that the standard method of assessment was not mandatory; that the purpose of the standard method was to determine the minimum starting point in deciding the number of homes needed in an area; and that higher housing targets than those produced by the standard method would be considered sound. In accordance with paragraph 73 of the NPPF, the respondent was required to assess local housing need as defined by the glossary. That assessment permitted an assessment either by the standard method or by a justified alternative approach. Therefore, the respondent was not required to use the standard method in calculating local housing need. Having used a different method, which produced a higher target figure, the respondent was entitled to conclude that the policy was out of date. The target figure for housing that the officer fed through into her advice was the target figure that the respondent had adopted in its draft development plan. The ONS statistics were not a mandatory consideration.
(3) The respondent had no statutory duty to give reasons for its decision to grant planning permission. But in some cases, the common law required reasons to be given, for example where a committee that granted planning permission had not followed their officer’s recommendation or where the decision involved a substantial departure from green belt and development plan policies. However, this was not a case where the planning committee departed from the officer’s recommendation. No evidence had been produced that established that the application would have a significant and lasting impact on the local community. There was no evidence that there was widespread public controversy about the application which did not relate to a major development on greenbelt land or to a major development in an area of outstanding natural beauty. The proper inference was that the committee had granted permission for the reasons given in the report and it was under no duty to provide additional reasons addressing the points made orally at the planning meeting regarding the effect of earlier projections: Dover District Council v CPRE (Kent) [2017] UKSC 79; [2018] EGLR 1 and Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71; [2018] EGLR 22 considered.
Richard Wald QC (instructed by Pinsent Masons LLP) appeared for the appellant; John Hunter (instructed by Harrogate Borough Council) appeared for the respondent
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Oxton Farm) v Harrogate Borough Council
