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High Court rules on Liverpool vs Sedgefield and some other NPPF housing interpretation issues

DATE: 19 Mar 2014

On 19th March the High Court gave judgment in Bloor Homes v Secretary of State for Communities & Local Government [2014] EWHC 754 (Admin).

The case involved a challenge to the refusal of planning permission on appeal by an Inspector for 91 houses in the village of Groby in Leicestershire.

The application raised 5 issues:
(1) whether the inspector either failed to apply or to explain how he had applied to Bloor’s proposal the principles of government policy in paragraph 14 of the NPPF for decision-making where the development plan is “absent” or “silent” (ground 1 of the application);
(2) whether the inspector failed to understand and consider the evidence and submissions presented to him by Bloor on the five-year supply of land for the development of housing, and whether the reasons he gave for his conclusion on this matter are adequate (ground 2);
(3) whether the inspector failed to apply the Government’s policy on the prematurity of proposals for development, or to explain why he had not applied that policy (ground 3);
(4) whether, in reaching his conclusions on the likely effect of the proposed development on the Green Wedge, and in considering the weight that ought to given to Policy 9 of the core strategy, the inspector failed to have regard to material considerations and had regard to considerations that were immaterial (ground 4); and
(5) whether the inspector failed to address Bloor’s contention that the proposed development would be “sustainable development” within the meaning of government policy, that Policy 9 of the core strategy was out of date, and that there was therefore a presumption in favour of planning permission being granted under the policy in paragraphs 14 and 49 of the NPPF (ground 5).

On Ground 1 Lindblom J. said

"44. In the context of decision-taking paragraph 14 identifies three possible shortcomings in the development plan, any one of which would require the authority to grant planning permission unless it is clear in the light of the policies of the NPPF that the benefits of doing so would be “significantly and demonstrably” outweighed by “any adverse impacts”, or there are specific policies in the NPPF indicating that “development should be restricted”. The three possible shortcomings are the absence of the plan, its silence, and its relevant policies having become out of date.
45. These are three distinct concepts. A development plan will be “absent” if none has been adopted for the relevant area and the relevant period. If there is such a plan, it may be “silent” because it lacks policy relevant to the project under consideration. And if the plan does have relevant policies these may have been overtaken by things that have happened since it was adopted, either on the ground or in some change in national policy, or for some other reason, so that they are now “out-of-date”. Absence will be a matter of fact. Silence will be either a matter of fact or a matter of construction, or both. And the question of whether relevant policies are no longer up to date will be either a matter of fact or perhaps a matter of both fact and judgment.
46. All of this, one has to remember, sits within the statutory framework for the making of decisions on applications for planning permission, in which those decisions must be made in accordance with the development plan unless material considerations indicate otherwise. Government policy in the NPPF does not, and could not, modify that statutory framework, but operates within it – as paragraph 12 of the NPPF acknowledges. The Government has taken the opportunity in the NPPF to confirm its commitment to a system of development control decision-making that is “genuinely plan-led” (paragraph 17). But in any event, within the statutory framework, the status of policy in the NPPF, including the policy for decision-making in paragraph 14, is that of a material consideration outside the development plan. It is for the decision-maker to decide what weight should be given to the policy in paragraph 14 if it applies to the case in hand. Because it is government policy it is likely to command significant weight when it has to be taken into account. But the court will not intervene unless the weight given to it can be said to be unreasonable in the Wednesbury sense (see paragraph 19(3) above)."

The Judge rejected Bloor's argument that the Inspector had erred in not concluding that the Development Plan was silent or absent.

On Ground 2 one of the sub-issues that arose was "the inspector’s choice of the Liverpool method, rather than the Sedgefield, for calculating the supply of housing land, despite the appeal decisions presented in evidence at the inquiry, in which the Sedgefield method had been preferred".

"107. I do not see any force in Mr Cahill’s submissions about the inspector’s choice of the Liverpool method of assessment in preference to the Sedgefield. Both methods were well established as means of assessing the supply of housing land. The inspector knew that. He had evidence from either side urging him to accept one method or the other, for reasons that were fully explained, the Council contending for the Liverpool method, Bloor for the Sedgefield. I have referred to relevant passages in the evidence and submissions at the inquiry, which show how the argument was put on either side (see paragraphs 72, 73, 82 and 83 above).
108. Neither method is prescribed, or said to be preferable to the other, in government policy in the NPPF. In my view the inspector was free to come to his own judgment on this question. In paragraphs 7 and 8 of his decision letter he referred to the essential characteristics of each method. In paragraph 7 he said the Liverpool method spreads any shortfall in supply in a given year over the remainder of the plan period, and is an appropriate method to adopt where there is not a severe shortage in supply. In paragraph 8 he described the Sedgefield approach as one that seeks to meet any shortfall earlier in the plan period. And he acknowledged Bloor’s assertion that this approach accords with the imperative of significantly boosting the supply of housing, stated in paragraph 47 of the NPPF.
109. It seems clear therefore that the inspector understood the essential differences between the two approaches and was able to reach his own view on the method that was more appropriate in the circumstances of this case.
110. Having referred in paragraphs 7 and 8 of his letter to the characteristics of the two methods, the inspector went on to say, in paragraph 9, that “the Liverpool model is a recognised way of calculating housing supply”. That observation, in itself, is not in dispute in these proceedings. The inspector based his choice of the Liverpool method on his consideration of the relevant facts, including the pattern and pace of housing provision planned for the borough in the core strategy. That was the context here. The inspector plainly took the view that, in the circumstances of this case at the time of his decision, the Liverpool method was the better way to establish what the level of supply really was.
111. The inspector gave significant weight to the core strategy inspector’s relevant conclusions, and, in particular, to his expectation that shortfalls in housing land supply in the early years of the core strategy period would later be overcome when the Sustainable Urban Extensions were developed. I do not accept that this was a misreading of the core strategy inspector’s conclusions in paragraphs 3.42 to 3.45 of his report (see paragraph 70 above). It was in effect, what he had said. But the inspector did not merely recite his colleague’s conclusion. He noted the progress that had been made with the Sustainable Urban Extensions at Shilton and Barwell (in paragraph 9 of his letter). And he expressly dealt with Bloor’s contention that the core strategy inspector’s conclusions were based on a promise that had now proved to be false – that sites would swiftly be brought forward by way of allocations in the Site Allocations DPD, which had now been delayed (paragraph 10 of the decision letter). He did not reject that contention out of hand, but noted that the inspector who had dismissed Bloor’s appeal in 2011 was himself aware of the delay that had occurred in the preparation of the Site Allocations DPD.
112. The inspector explained why he shared the view of the core strategy inspector about early shortfalls in supply being corrected by large-scale housing development later in the core strategy period. He plainly had in mind the policy in paragraph 47 of the NPPF, which is cast in terms of a need “[to] boost significantly the supply of housing” and says that authorities should “use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs” for housing in the relevant area, and identify a supply of sites “sufficient for provide five years worth of housing against their housing requirements …”. He referred to that policy explicitly in paragraph 8, and came back to it in paragraph 11, where he referred to the Council not being “averse to boosting the supply of housing”.
113. Having set out the considerations weighing for and against either approach, the inspector went on, in paragraph 11 of his letter, to conclude that the Liverpool method provided “a reasonable basis for assessing future supply”. It was, in his opinion, a method congruent with the approach in the core strategy, and consistent with the aim of fulfilling the housing requirements identified there. That was a matter of judgment for him."

The claim ultimately succeeded on the basis that the Inspector had failed to deal with an argument made by Bloor on the need to make a 10% discount from the notional delivery of housing on larger sites. This was important as the Inspector determined the 5 year supply to be 5.02 years and it would have fallen below this were such a 10% reduction applied.

Click here for the judgment.

James Maurici QC appeared for the Secretary of State.