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Exeter City Council v. Secretary of State for Communities and Local Government [2015] EWHC 1663 (Admin)

DATE: 12 Jun 2015

This was a challenge under s.288 of the Town and Country Planning Act 1990 to the decision of an Inspector on behalf of the Secretary of State to allow an appeal by Waddeton Park Ltd and the RB Nelder Trust against the refusal by Exeter City Council of their application for planning permission for 120 dwellings at Home Farm, Pinhoe, Exeter. The principal issue was whether the Inspector’s decision to exclude student housing from the calculation of Council’s housing land supply, which resulted in her concluding that the Council did not have a five year supply of deliverable sites, was inconsistent with para. 47 of the NPPF and/or paragraph 3.38 of the Planning Practice Guidance. Hickinbottom J. held that it was not. At paras. 43-44, he held: 

43.  … Paragraph 3.38 does not allow – let alone require – all new student accommodation simply to be included towards the housing requirement, as Mr Whale suggests: rather, it allows an authority to reflect the release of accommodation units onto the general housing market as a result of new student accommodation (although, of course, in the unlikely event that the provision of student accommodation releases unit for unit to the general market, then the whole of the accommodation may effectively go to satisfy the requirement).  That is clear from the words used; but also from the reference to communal student accommodation, which is not included in the housing requirement figure and (Mr Whale accepts) was in this case properly not included within the housing supply figure either…

44.  Far from the Inspector’s approach to student accommodation and housing supply in this case being wrong in law, in my view it was eminently correct.  She was correct not to accede to the Council’s submission that all student accommodation supplied should or could be set off against the housing requirement.  She was correct not to be persuaded by the Developers’ contention that she could not under any circumstances take into account student accommodation.  She was correct to look at the facts of this case and determine whether, on the evidence before her, there was any basis for taking any of the new student accommodation into account.  Given the evidence that a substantial number of additional general market dwellings had been occupied by students, she was clearly entitled to find that there was not.  She properly accepted (in paragraph 47) that, although there was currently no evidence to show that the provision of student accommodation has released housing into the general market in Exeter, the situation may in the future change if (e.g.) the delivery of student accommodation significantly exceeded the increase in student population.

Hickinbottom J. also accepted the Secretary of State’s and the developers’ submissions that even if the challenged aspects of the decision letter were wrong in law and the Inspector had found that the Council did have a five-year housing land supply, the outcome would inevitably have been the same given that the Inspector did not identify any harm that the development would cause other than the breach of a local plan landscape policy which she found to be out of date for reasons unassociated with the housing land supply situation, and therefore that the Court should in any event exercise its discretion not to quash in any event. 

Stephen Whale appeared for Exeter City Council, instructed by the Council’s Legal Services Department.

Sasha Blackmore appeared for the Secretary of State, instructed by the Government Legal Department.

Charles Banner appeared for Waddeton Park Ltd and the RB Nelder Trust, instructed by Stephens Scown LLP.