Hickinbottom J’s judgment in (1) Gallagher Homes Limited (2) Lioncourt Homes Limited v Solihull Metropolitan Borough Council  EWHC 1283 (Admin) sets out valuable guidance for all involved in the plan-making process on the objective assessment of housing need.
The Claimants’ sites in the Tidbury Green area of Solihull were placed into the Green Belt by the Solihull Local Plan (“SLP”), adopted on the 3 December 2013. They challenged the SLP on three grounds, namely that (i) it was not supported by an objectively assessed figure for housing need, within the meaning of the National Planning Policy Framework (“NPPF”), (ii) the Council had failed in its duty to cooperate, and (iii) the Council adopted a plan without regard to the proper test for revising Green Belt boundaries.
The SLP proposed a housing provision over the period 2006-28 of 11,000 dwellings. That figure was derived from the 2009 revisions of the now-revoked West Midlands Regional Spatial Strategy, and in the context of PPS3. The Council contended that, albeit the SLP had not identified a figure for “objectively assessed need”, there was no requirement to identify such a figure. The RSS-derived housing figure had taken into account evidence of housing need as well as constraining policy factors. There had been no significant change in demographic trends or policy. In consequence, the Council claimed that the requirements of the NPPF were satisfied.
The Court rejected that case. Hickinbottom J identified the “substantive error” in the Inspector’s decision as “a failure to grapple with the issue of full objectively assessed housing need, with which the NPPF required him, in some way, to deal”. Housing data from an earlier regional strategy exercise can be used in preparing a local plan: see §218 NPPF. However, the Judge said at  that:
“where, as in this case, the plan-maker uses a policy on figure from an earlier regional strategy, even as a starting point, he can only do so with extreme caution – because of the radical policy change in respect of housing provision effected by the NPPF.”
Hickinbottom J found that the NPPF departed from PPS3 in two important ways: (a) the abandoning of the “regional, top down” approach in favour of localism with a duty to cooperate with neighbouring authorities and (b) by placing considerable emphasis on the policy imperative of increasing the supply of housing. Under §47 NPPF, the Judge said that housing needs are “not just a material consideration, but a consideration of particular standing”. In addition, at  the Court addressed the “major policy changes in relation to housing supply brought into play by the NPPF”, noting that:
“Unlike its predecessor (which required a balancing exercise involving all material considerations, including need, demand and relevant policy factors), the NPPF requires plan-makers to focus on full objectively assessed need for housing, and to meet that need unless (and only to the extent that) other policy factors within the NPPF dictate otherwise. That, too, requires a balancing exercise – to see whether other policy factors significantly and demonstrably outweigh the benefits of such housing provision – but that is a very different exercise than that required pre-NPPF.”
In consequence, the Judge held at  that §47 NPPF requires full housing needs to be objectively assessed in some way, and that it was insufficient for NPPF purposes for all material considerations (including need, demand and other relevant policies) simply to be weighed together. He said at :
“Paragraph 47 requires full housing needs to be objectively assessed, and then a distinct assessment made as to whether (and, if so, to what extent) other policies dictate or justify constraint. Here, numbers matter; because the larger the need, the more pressure will or might be applied to infringe on other inconsistent policies. The balancing exercise required by paragraph 47 cannot be performed without being informed by the actual full housing need.”
Hickinbottom J confirmed that, contrary to the Council’s submissions, the principles set out by Sir David Keene in City and District Council of St Albans v Hunston Properties Limited and the Secretary of State for Communities and Local Government  EWCA Civ 1610 on the proper approach to interpreting §47 NPPF applies not only to decision-taking but to plan-making. In that context, he said at  that:
“in plan-making, full objectively assessed housing needs are not only a material consideration, but a consideration of particular standing with a particular role to play.”
In addition, the Inspector had failed to identify exceptional circumstances to justify modifying the Green Belt. His approach was simply to weigh material factors, and, exercising his planning judgment, to the Claimants’ sites should or should not be in the Green Belt. That fell “ very far short of the stringent test for exceptional circumstances that any revision of the Green Belt boundary must satisfy”.
The Court will hear further submissions on relief.
This case sends a stark warning to Councils preparing local plans which rely on pre-NPPF housing figures. The Court held that the policy change brought about by the NPPF is “radical”. It cannot be met simply by transposing the PPS3 approach – balancing need, demand and other questions of policy. §47 NPPF requires plan-makers to take a discrete step which was not required under PPS3: the express identification of a figure for full objectively assessed housing need. In taking that first step, the Court accepted that earlier figures from regional strategies can form a relevant starting point, but must be regarded with “extreme caution”. The Court also confirmed that Sir David Keene’s interpretation of §47 NPPF in Hunston(i.e. “the needs assessment, objectively arrived at, is not affected in advance of the production of the Local Plan, which will then set the requirement figure”) applies to plan-making as well as to decision-taking.