Landmark ruling on housing needs following the revocation of regional strategies

Landmark ruling on housing needs following the revocation of regional strategies

CategoryNews Author Paul Stinchcombe KC, Ned Helme Date

Paul Stinchcombe QC and Ned Helme have won a landmark case (Hunston Properties Limited v. (1) Secretary of State for Communities and Local Government and (2) St Albans City and District Council) [2013] EWHC 2678 (Admin)) concerning the assessment of housing needs under the National Planning Policy Framework (NPPF) following the Secretary of State’s revocation of Regional Strategies, including the East of England Plan (EEP), and in circumstances where the Development Plan is out-of-date.

The case concerned a planning appeal against the decision of an Inspector to dismiss the appeal of Hunston Properties Limited (HPL) following the Council’s refusal to grant planning permission for a development comprising 116 dwellings on Green Belt land abutting St Albans. The Council argued that this was inappropriate development for which no very special circumstances existed; HPL argued that such very special circumstances did exist, including: (1) a policy vacuum so far as housing requirements were concerned following the revocation of the EEP; and (2) the Council’s failure to identify a 5 year supply of deliverable housing in accordance with paragraph 47 of the NPPF.

When it was in force the EEP had formed part of the Development Plan for the East of England, including St Albans. Together with Planning Policy Statement 3 (PPS3), the EEP carried into effect a regionalism policy, seeking to address housing shortages in the region by focussing on 21 locations where it was considered that new development should be concentrated. A consequence was that other areas underwent less redevelopment. The EEP provided for a minimum annual average development for St Albans of 360 dwellings, a figure that took account of various constraints to development and did not (and did not purport to) identify an objective need requirement for the district.

However, the EEP was revoked on 3rd January 2013 as part of the coalition Government’s shift to a localism policy, enshrined by the NPPF (which had abolished PPS3). So far as housing was concerned, paragraph 47 of the NPPF is to following effect:

“47. To boost significantly the supply of housing, local planning authorities should:

  • use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
  • identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements…”

Notwithstanding the requirement of the NPPF that local planning authorities (LPAs) develop a Local Plan for the purpose of giving effect to the policies set out within the NPPF, St Albans City and District Council had not done so – its emerging Strategic Local Plan had been suspended by a series of resolutions passed by the Council on 28th November 2012. It was common ground that, in consequence, the emerging Strategic Local Plan carried no weight for the purpose of making planning decisions. It was also common ground that the effect of: (1) the revocation of the EEP; and (2) the suspension of the emerging Strategic Local Plan, was that there was a “policy vacuum” so far as any housing requirement for St Albans was concerned. The Council’s cabinet had, however, sought to fill this vacuum by passing a resolution on 17th January 2013 agreeing “… the use of the East of England Plan housing target of 360 dwellings per annum from 2001 to 2021 as the most appropriate interim housing target/requirement to use for housing land supply purposes”.

HPL’s case before the Inspector was that, following the revocation of the EEP, reliance could no longer be placed on the 360 figure. In particular, independent and objective evidence (from the Department for Communities and Local Government) confirmed annual and projected housing needs for St Albans of 688 households per annum. This produced an adjusted requirement for St Albans of 3,600 dwellings over a 5 year period. However, on the Council’s own evidence the total dwellings that could be accommodated was just 2,183, leading to a shortfall that corresponded to unmet housing needs of at least 1,417 dwellings. Helping to meet these housing needs amounted to very special circumstances to be weighed in favour of the proposed development.

The Inspector rejected this submission and concluded that the appropriate housing target was 360 dwellings per annum as resolved by the Council’s cabinet. This resulted in a 5 year requirement of 1,800 dwellings which could be accommodated on the sites identified by the Council. Accordingly, the Inspector held that there were no identified unmet housing needs capable of constituting very special circumstances.

HPL’s case in the High Court was that the Inspector had fallen into error by adopting the 360 figure of the revoked EEP rather than the figure of 688, and that in so deciding the Inspector had misconstrued and misapplied the relevant parts of the NPPF.

HHJ Pelling QC, sitting as a judge of the High Court, upheld HPL’s application and quashed the Inspector’s Decision Letter, stating as follows:

28. “Where it is being contended that very special circumstances exist because of a shortfall caused by the difference between the full objectively assessed needs for market and affordable housing and that which can be provided from the supply of specific deliverable sites identified by the relevant planning authority, I do not see how it can be open to a LPA or Inspector to reach a conclusion as to whether that very special circumstance had been made out by reference to a figure that does not even purport to reflect the full objectively assessed needs for market and affordable housing applicable at the time the figure was arrived at. It is common ground that the EEP figure that the Inspector adopted was not such a figure [….] As the Inspector entirely accurately observed of the EEP figure that she concluded it was appropriate to adopt: “In reaching the housing requirement, the supporting text made it clear that full provision is not made for all needs irrespective of constraint.” A figure that takes account of constraints should not have any role to play in assessing an assertion by an applicant in the position of HPL that an actual housing requirement has not been met[…]

29. It was argued by the Defendants and principally on behalf of the Council that this approach did not give effect to the whole of the wording contained in Paragraph 47 of the NPPF. The essence of this submission was that the approach HPL advocated ignored the words “… in so far as is consistent with the policies set out in this Framework …”. I accept that proper construction of the NPPF requires the document to be read as a whole. However, I do not accept that the construction for which HPL contends fails to give effect to the words relied on by the Council and that in consequence the appropriate course was to adopt the housing needs figure identified in the EEP. First, given that it is necessary to take account of all the words used, that means that it is necessary to take account of the opening words of the paragraph – “To boost significantly the supply of housing…”. It is difficult to see how construing the whole of the first bullet point in the paragraph as meaning that the needs figure referred to is or could be a figure that expressly does not and does not purport to identify actual need could be said to give effect to those words. Secondly, had it been intended that this approach should be adopted, the Policy could have encouraged the use of needs figures derived from the relevant RSS pending the adoption of a strategic local plan prepared in accordance with the NPPF. Not merely is there no such provision, but Paragraph 1 makes clear that the NPPF represents a new start with a large number of planning policies being revoked and replaced. PPS3 was expressly revoked by the NPPF and as I have explained the RSS was revoked on 3 January 2013. Thirdly, I do not see how a constraints adjusted figure arrived at having regard to the policy requirements as they applied at the time when the EEP took effect can be said to lead to the same conclusion applying the first bullet point in Paragraph 47 when that paragraph is read as a whole. The wording of the first bullet point emphasises what is emphasised elsewhere in the NPPF, namely that the NPPF creates a presumption in favour of sustainable development. Finally the suggestion that the words “… in so far as is consistent with the policies set out in this Framework…” requires or permits a decision maker to adopt an old RSS figure is unsustainable as a matter of language. That language requires that the decision maker considers each application or appeal on its merits. Having identified the full objectively assessed needs figure the decision maker must then consider the impact of the other policies set out in the NPPF. The Green Belt policy as I have explained is not an outright prohibition on development in the Green Belt. Rather it is a prohibition on inappropriate development in the absence of very special circumstances. It is entirely circular to argue that there are no very special circumstances based on objectively assessed but unfulfilled need that can justify development in the Green Belt by reference to a figure that has been arrived at under a revoked policy which was arrived at taking account of the need to avoid development in the Green Belt.

Please find the judgement here.

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