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Delivering a sufficient supply of homes

NPPF 59

 

Crondall Parish Council [2019] EWHC 1211 (Admin), Dove J
David Elvin QC and Zack Simons appeared for the Secretary of State
Reuben Taylor QC appeared for the Second Defendant

“108. … [The Inspector] was entitled to conclude, as he did, that the policy objective of significantly boosting the supply of homes contained in paragraph 59 did not cease to apply when housing land supply in excess of five years could be established.”

 

Oxton Farm v Harrogate Borough Council [2020] EWCA Civ 805, Underhill LJ VPCA, Lewison LJ, Carr LJ

“42. Mr Wald’s argument entails the proposition that the ONS projections were the mandatory starting point for the calculation of objectively assessed housing need. But in my judgment that proposition is itself erroneous. Government policy states quite clearly (a) that the standard method is not mandatory; (b) that the purpose of the standard method is to determine the minimum starting point in deciding the number of homes needed in an area; and (c) that higher housing targets than those produced by the standard method will be considered sound. (I add that we were told by Mr Hunter that the position has now changed).”

 

Wainhomes (North-West) Limited [2020] EWHC 2294 (Admin), Dove J

“Whilst [Leading Counsel] is entitled to point to the wider national planning policy context of boosting significantly the supply of housing land, as Mr Cannock points out in his submissions, the use of the standard method to derive local housing need is part and parcel of the Framework’s policies to achieve that objective.” [43]

 

Tewkesbury BC [2021] EWHC 2782 (Admin), Dove J
Tim Buley QC appeared for the Secretary of State

“30.  Thus, in addition to the question of whether or not the tilted balance in paragraph 11 of the Framework is engaged by virtue of the inability of the local planning authority to demonstrate a five year housing land supply, consideration should be given to the question of the extent of any shortfall, even in terms of a broad magnitude, so as to enable the decision-maker to understand the weight which can properly be given to that shortfall as a material consideration, albeit there may be exceptional cases where it is simply not possible for that to be done. None of the parties in the present case suggested that that exception was relevant.”

 

NPPF 73

 

Tewkesbury BC [2019] EWHC 1775 (Admin), Dove J
Tim Buley QC appeared for the Secretary of State

“14. …Mr Tim Buley, on behalf of the Defendant, contends that, as the Inspector observed, the Framework and the PPG are completely silent on the issue of whether or not any oversupply should be taken into account when calculating the five year requirement.”

The Court found that it did not have jurisdiction to determine the matter.

 

Peel Investments (North) Limited [2020] JPL 279, Dove J
Matthew Fraser appeared as Junior Counsel for the Second Defendant

“81. … In my view the provisions both of the 2012 Framework (in paras 47 and 49) and, as set out above, in the 2018 Framework (in para.73), are clear. The requirement to demonstrate a deliverable five-year housing land supply is one which is purely quantitative. It involves a calculation of the deliverable number of units within the five-year time period, and nowhere in the text of the policy pertinent to how the five-year housing land supply is to be assessed is there any suggestion that the qualitative nature of that supply (including its mix of house type or tenure) has any part to play in determining whether there is a qualifying five-year housing land supply available to a local planning authority. That is not to say that that those qualitative issues are not relevant to the planning balance. As the Inspector observed at para.375 of his report, an identified deficiency in the qualitative mix of housing is a matter which is relevant to the exercise of the planning balance and may, as in the present case, give rise to significant weight being attributed to this issue in support of planning permission being granted.”

 

Eastleigh BC [2019] EWHC 1862 (Admin), Garnham J
Leon Glenister appeared for the Secretary of State
Christopher Boyle QC and Andrew Parkinson appeared for the Second and Third Defendant

“47.  It is common ground that where there is no 5YHLS, the NPPF, in both its 2012 and 2018 forms, deems such policies out of date. …

  1. However, as Mr Glenister put it, in the context of the NPPF, there is a ‘one-way consideration’ for 5YHLS. AS Mr Boyle submits, there is nothing in statute or policy which expressly or impliedly required the Inspector to take into account the existence of a 5YHLS when deciding the weight to be attached to countryside policies.  Accordingly, it was for the Inspector to determine the weight to be attached to the fact that there was more than 5YHLS, subject only to a Wednesbury challenge.
  2. In my judgment, a failure to give weight to the fact that the Council could demonstrate more than a 5YHLS in determining the weight which should be accorded to development plan policies was not irrational. When the Inspector came to consider the overall planning balance, at DL47, he did consider the weight to be attached to the provision of housing.  That was the proper place in the analysis for that consideration.  I see no basis for saying he should have increased the weight, prior to conducting the balancing exercise because of the absence of a negative, namely that there was no shortage of housing land.”

 

Oxton Farm v Harrogate Borough Council [2020] EWCA Civ 805, Underhill LJ VPCA, Lewison LJ, Carr LJ

At [54], applied the reasoning in Eastleigh Borough Council, and stated “Moreover, as I have said, questions of weight are for the decision-maker.”

 

Wainhomes (North-West) Limited [2020] EWHC 2294 (Admin), Dove J

The challenge raised the question of whether a review had been carried out for the purposes of fn 37 to the NPPF:

“It is clear that footnote 37, related as it is to paragraph 73 of the Framework, relates to strategic polices containing a housing requirement. In this case the strategic policy containing the housing requirement is Core Strategy Policy 4(a), and not the other elements of the policy which relate to additional ancillary matters. The apparent reliance on Core Strategy Policy 4 not having been reviewed as a whole is further complicated by Mr Fraser’s pertinent submission that in fact the MOU contained agreement not simply in relation to policy 4(a), but also in relation to those other ancillary matters. In short, it is difficult to understand, and the Inspector failed to explain, firstly, why the whole of Core Strategy Policy 4 had to be reviewed for the exercise to constitute a review for the purposes of footnote 37 and, secondly, why the MOU did not constitute that review of the whole policy bearing in mind the contents of the MOU.” [40]

“There may be many material changes in the planning circumstances of a local authority’s area which would properly render their existing plan policies out of date and in need of whole or partial review. I am unable to accept Mr Fraser’s submission that it is impermissible to regard the emergence of a local housing need figure which is greatly reduced from that in an extant development plan policy as having the potential to amount to a significant change.” [43]

Tewkesbury BC [2021] EWHC 2782 (Admin), Dove J
Tim Buley QC appeared for the Secretary of State

“42.  In relation to ground 1, I am unable to accept the primary submission made by the claimant that the provisions of the Framework require any oversupply prior to the period for which a five-year housing land supply is being calculated to be taken into account. Firstly, the text of the Framework does not include any such suggestion. The claimant’s argument depends upon this conclusion being a necessary inference from the way in which the Framework has been drafted. It is not an inference which, in my judgment, can properly be drawn. Whilst it is clear that the intention of the Framework is that planning authorities should meet the housing requirements set out in adopted strategic policies, that does not necessarily mean that any oversupply in earlier years as in the present case will automatically be counted within the five-year supply calculation. The text of the Framework is silent, or alternatively does not deal, with what account if any should be taken of oversupply achieved in earlier years when calculating the five-year supply.

43. In the absence of any specific provision within the Framework there is no text falling for interpretation, and it is not the task of the court to seek to fill in gaps in the policy of the Framework. It is far from uncommon for there to be gaps in the coverage of relevant planning policies: they will seldom be able to be designed to cover every conceivable situation which may arise for consideration. Again, that is perhaps unsurprising given the breadth of the potential scenarios which may arise in the context of a planning application on any particular topic, especially where it is a high level policy with a broad scope like the Framework which is being considered. When it arises that there is no policy covering the situation under consideration then it calls for the exercise of planning judgment by the decision-maker to make the necessary assessment of the issue to determine the weight to be placed within the planning balance in respect of it. In the absence of policy within the Framework on the question of whether or not to take account of oversupply of housing prior to the five year period being assessed in the calculation of the five-year housing land supply the question of whether or not to do so will be a matter of planning judgment for the decision-maker bearing in mind the particular circumstances of the case being considered.

44. I do not consider that the claimant’s argument is assisted by the guidance contained within the PPG. Whilst the claimant contends that the observations within paragraphs 31 and 32 of the PPG should be mirrored in relation to over-supply as a whole, I see no warrant for drawing that inference. It is clear that the PPG has sought to address a particular circumstance, namely where there has been some shortfall as well as some oversupply in previous years. However, the PPG does not engage with the particular situation with which this case is concerned, and there is no reason to suppose that the defendant has done other than leave the particular question arising in this case to the exercise of planning judgment on a case-by-case basis. Had it been thought appropriate to offer specific guidance the defendant would have done so. The defendant did not and therefore the matter is left as a question of judgment for the situations in which the issue arises.

45. Further submissions were offered by the claimant in relation to the purpose of the policy in relation to the five year housing land supply requirement and the consequences of it not being demonstrated, in order to support their contentions that it can be inferred to be the policy of the Framework that an oversupply of housing in earlier years should be taken into account. I am not dissuaded from the conclusion I have reached by those arguments. In particular, they are predicated on the assumption that it is appropriate for the court to introduce, by way of inference, text into the policy of the Framework which does not exist. As set out above that is in my judgment a clearly inappropriate course. Secondly, the points raised by the claimant in relation to the objective of the policy being to meet the strategic housing requirement across the plan period and the tilted balance being introduced by the five year housing land supply to address circumstances where planning permissions are required to improve the prospects of meeting that requirement are contentions which would undoubtedly form part of the planning judgment to be made in each particular case as to whether or not earlier oversupply should be taken into account, and, if so, how.

46. My conclusions in relation to the claimant’s primary argument on ground 1 are reinforced by the practical considerations referred to by the defendant in the course of argument. These practical considerations provide some illuminating context as to why it may be that the defendant has left the issue which arises in this case to the exercise of planning judgment in individual applications. The defendant pointed out that whilst the assumption of the claimant’s argument is that there is a binary or arithmetical choice between either taking past oversupply into account or not, the reality is that in practical terms there are several broad policy approaches which might be taken to the question of how to account for past oversupply in calculating the five year supply. It might be taken into account on a one-for-one basis as essentially sought by the claimant; the oversupply might be credited but applied over the remaining plan period which would be likely to be less than one-for-one in terms of the credit allowed in calculating the five-year housing land supply; the policy choice might be that past oversupply cannot be credited at all; the question of whether credit is made in the next five years or carried across the remaining plan period could be a matter left for the planning judgment of the decision-maker; finally the issue could be one left in its entirety to the planning judgment of the decision-maker in each case. Thus, the issue is perhaps not as simple as the claimant’s primary submission would suggest, and in addition to the concerns set out above the defendant’s submission reinforces the concern of the court as to the propriety of second guessing these policy choices.

47. It follows that for all of these reasons the claimant’s primary submission under ground 1, that the Framework required the oversupply from earlier years to be taken into account in the five-year housing land supply calculation, cannot succeed. The claimant contends that this primary submission proceeds on the basis that it is not the claimant’s case as to the interpretation of the Framework that paragraph 73 of the Framework prescribes how an oversupply should be taken into account, but rather that whether to take it into account at all cannot be simply a matter of planning judgment but is required by the Framework. Again, similar points arise in relation to the absence from the Framework of any policy text which would justify such an approach. The Framework does not say, nor does the PPG, that oversupply must be taken into account in all circumstances. For the reasons already given it is not for the court to supplement or add to the existing text of the policy. The question of whether or not to take into account past oversupply in the circumstances of the present case is, like the question of how it is to be taken into account, a question of planning judgment which is not addressed by the Framework or the PPG and for which therefore there is no policy. No doubt in at least most cases the question of oversupply will need to be considered in assessing housing needs and requirements. The fact this may be the case does not require the court to provide policy in relation to this issue which the policy maker has chosen not to include.

48. The claimant’s second submission in relation to ground 1 is the contention that the Inspector proceeded on an incorrect basis namely that the Framework prohibited her from taking account of the identified past oversupply. In particular the claimant relies upon paragraph 59 of the decision letter in which the Inspector noted that the policy in the Framework “makes no allowance for subtracting additional supply from the annual requirement”, going on to allude to the absence of a symmetrical approach to that in paragraph 32 of the PPG in respect of earlier oversupply. Additionally, in paragraph 61 of the decision letter the Inspector observed that previous housing completions could not bring themselves within the definition of deliverable housing. At paragraph 63 of the decision letter the Inspector observed that “additional supply is not a tool that can be used to discount the council’s housing requirement set out in its adopted strategic policies”. Thus, the claimant contends that the Inspector misinterpreted the Framework as preventing her from taking any account of oversupply in addressing the five-year housing supply calculation.

49. In my judgment there are, first and foremost, two important pieces of context in relation to the claimant’s argument. The first, which is trite, is that the Inspector’s decision letter must be read fairly and as a whole, in the spirit that its purpose is to convey an administrative decision on a planning appeal rather than it being some form of legal instrument. Secondly, the purpose of the decision letter must be borne in mind, namely, to address the issues raised in the appeal by the parties. Bearing these factors in mind it is clear to me, firstly, that the Inspector’s observations in relation to additional supply must be read in the context of the overall section of her decision entitled Housing Land Supply. The section in relation to additional supply must be read together with that pertaining to future supply in order to understand the Inspector’s overall conclusions on housing land supply and the planning judgments which she reached. Secondly, the issues which the Inspector was addressing were those which were identified by the claimant and the interested parties. For instance, in neither the SOCG nor the claimant’s closing submissions which have been set out above was the Inspector being asked to rule definitively on an interpretation of paragraph 73 of the Framework. Rather, the contention made by the claimant was that in the particular circumstances of the case the earlier oversupply should be taken into account and could be taken into account, consistently with the policies of the Framework and the guidance in the PPG.

50. In that context the observations of the Inspector in paragraph 59 that there is no requirement in the PPG to take account of earlier oversupply reflects the need to exercise planning judgment and were consistent with the approach that in the absence of specific policy in the Framework it was necessary for the Inspector to exercise her own planning judgment in relation to the question of whether to take oversupply into account. Her observation in paragraph 61 about delivered housing not falling within the definition of deliverable housing simply reflected the reality of what could properly be taken account of as forward supply. The conclusion in paragraph 63 is one which is clearly cast with the particular circumstances of the case in mind, and has to be put in the context of the additional conclusions. These included the Inspector’s conclusions at paragraphs 68 to 72 of the decision letter in relation to the shape of the future trajectory for housing supply in the claimant’s administrative area, which she concluded was deeply concerning, particularly in relation to a lack of supply beyond year 3 in the calculation. This led to her conclusions in paragraph 73 of the decision letter on housing land supply, incorporating the observation reflecting the concern about lack of supply beyond year 3, and that “the past trend of additional supply is not projected to continue”. Thus, read in context and as a whole, the Inspector’s conclusions on housing land supply are in my view an expression of the application of planning judgment to the particular circumstances of the claimant’s five year housing land supply calculation, and do not proceed on the basis that the Inspector was reading the Framework as prohibiting her from taking into account earlier additional supply. Indeed, her overall conclusion in paragraph 73 addresses the position even had she taken it into account. I am therefore unpersuaded that there is any merit in the alternative way in which the claimant presents ground 1.”

 

East Riding of Yorkshire Council [2021] EWHC 3271 (Admin), Dove J
Matthew Henderson appeared as Junior Counsel for the Claimant

“9.  … the Housing Land Supply Position Statement proposed an alternative approach to calculating the five-year housing land supply requirement which became known as the hybrid approach. This approach deployed the local plan requirement from the East Riding Local Plan of 1,400 dwellings for the first year of the five-year housing supply calculation, and then four years using the housing requirement calculated using the standard method of 909 dwellings per annum. This, plainly, gave rise to a lower requirement figure, and the calculation within table 13 of the Housing Land Supply Position Statement demonstrated a 6.2 year supply using the hybrid approach”

“32.  In any event, the first and second defendant submit that the reasons provided by the Inspector dealt with the claimant’s contention that the hybrid approach should be adopted, and explained that the role of paragraph 48 of the Framework and emerging development plan policies made a difference or distinction between the VIP and Clacton decisions and the case which she was considering. The first defendant draws particular attention to paragraphs 32 to 34, and paragraph 34 in particular, which deal both with the reasons for rejecting the submission that paragraph 48 provides no basis for distinguishing the VIP and the Clacton decisions, and also the submission made by the claimant in relation to certainty and imminence. Paragraph 33 explains that there is no direction in the Framework suggesting that as the use of a local housing needs figure derived from the standard methodology approaches there should be a different approach, taken in the same way as paragraph 48 addresses the issues relating to emerging local plans. Paragraph 34 of the decision explains following on from this that paragraph 73 presents a clear binary approach depending on whether or not the local plan is five years old. The Inspector’s reasons record that the standard methodology was introduced in order to be simpler, quicker and more transparent, and that the adoption of a hybrid approach would undermine that efficiency and transparency. Both the first and second defendants emphasise that these are the reasons for the Inspector’s decision, and that they address the points raised by the claimant.

    1. … This reasoning is clear and reinforced by the complimentary paragraph 34, in which the Inspector points out the Framework’s adoption of a clear period of five years for both housing land supply and also local plan preparation and review, which is reflected, as she observes, in the binary choice between the use of the housing requirement in adopted policies, or alternatively the local housing need generated by the standard methodology where those strategic policies are more than five years old. As her added emphasis to the words “either” and “or” notes, the calculation requires use of either a local plan housing requirement or (when the circumstances come within footnote 37) the local housing need figure, but not both. She observes that this “simpler, quicker and more transparent” approach would be undermined by the adoption of a hybrid approach. Thus, the Inspector decided not to depart from paragraph 73 of the Framework.

    1. These reasons in my judgment clearly explain why the Inspector reached the conclusion that she did that there was no basis to depart from paragraph 73 of the Framework. To explain the decision which she made it was not necessary for the Inspector to address each and every argument which the claimant raised in the course of its evidence and submissions. The reasons provided in paragraphs 33 and 34 explain why the Inspector did not propose to depart from paragraph 73 of the Framework in order to evaluate the question of the five-year housing land supply. I do not consider that there is any substance in the complaints raised by the claimant under ground 1.”

 

NPPF 79

 

City & Country Bramshill Ltd [2021] EWCA Civ 320, Sir Keith Lindblom, Senior President of Tribunals, Phillips and Arnold LJJ
Guy Williams and Alistair Mills appeared for the Secretary of State

“30.  One must remember that the concept of “isolated homes in the countryside” is not a concept of law. It is a concept of national planning policy. It is not defined in the NPPF. It does not lend itself to rigorous judicial analysis (see the judgment of Lord Carnwath in Hopkins Homes Ltd., at paragraph 26). As with many other broadly framed policies in the NPPF, its application will depend on the facts of the case, and decision-makers will have to exercise their planning judgment in a wide variety of circumstances (see the judgment of Lord Carnwath in R. (on the application of Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3, [2020] P.T.S.R. 221, at paragraph 39). The court’s role, therefore, both in interpreting the policy and in reviewing its application, is limited (see Hopkins Homes Ltd., at paragraphs 24 to 26). As Lord Reed said in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983 (in paragraph 18) , where decision-makers are required to exercise judgment in applying a policy to a given set of facts, “their exercise of their judgment can only be challenged on the ground that it is irrational or perverse”.
31.  Fortunately, we are not faced with having to interpret the paragraph 79 policy. That has already been done by this court in Braintree District Council [v SSCLG [2018] 2 P&CR 9] – though for the predecessor policy in paragraph 55 of the 2012 version of the NPPF. In Braintree District Council the central issue in the appeal was the meaning of the expression “new isolated homes in the countryside”. In this case, the contentious phrase – now in paragraph 79 – is simply “isolated homes in the countryside”. In substance, however, the policy is unchanged.
32.  There is, therefore, no need for any further discussion of what is meant by the concept of “isolated homes in the countryside” in this policy. The essential conclusion of this court in Braintree District Council , in paragraph 42 of the judgment, is that in determining whether a particular proposal is for “isolated homes in the countryside”, the decision-maker must consider “whether [the development] would be physically isolated, in the sense of being isolated from a settlement”. What is a “settlement” and whether the development would be “isolated” from a settlement are both matters of planning judgment for the decision-maker on the facts of the particular case. This understanding of the policy, in its context, is not disturbed by what Lewison L.J. had earlier said in Dartford Borough Council (at paragraph 15). His observation was obiter, as was my comment about it in Braintree District Council (at paragraph 38). No conflict of authority exists between the decisions in those two cases.
33.  To adopt remoteness from other dwellings, instead of remoteness from a settlement, as the test for “isolated homes in the countryside” would seem inconsistent with the Government’s evident intention in producing the policy in paragraph 79. It would mean, presumably, that the policy would not apply to a development of housing in the countryside – large or small – on land next to an individual dwelling remote from the nearest settlement, because although the new homes might be “isolated” from the settlement, they would not be “isolated” from existing development. It would prevent the policy from applying to the development of additional dwellings, one or two at a time, on sites next to other sporadic rural housing, again on the basis that they would not then be “isolated”. It might even prevent the policy from applying to a proposal for two or more dwellings on a single, undeveloped site in the countryside, because none of them would itself be “isolated” from another dwelling, and the development as a whole would therefore not be “isolated”. If this were so, only the development of a single dwelling, on its own, separate from any other dwelling already built or proposed nearby, would engage the policy. This would be hard to reconcile with the Government’s aim, as policy-maker, to “promote sustainable development in rural areas”.
34.  The policy in paragraphs 78 and 79 of the NPPF aligns with that in paragraph 72. Their common theme is the need for the planning system to promote sustainably located housing development. Neither policy favours the unplanned and unsustainable development of housing in the countryside, away from existing settlements. As paragraph 72 indicates, it is for plan-making to achieve the “supply of large numbers of new homes” by “planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities”. This is within the remit of “strategic policy-making authorities”. It is their job to “identify suitable locations for such development where this can help to meet identified needs in a sustainable way”.”

 

R (Wiltshire Council) [2020] EWHC 954 (Admin), Lieven J

“26.  … The issue is whether “dwelling” [in NPPF 79(d)] means a single residential building, or a wider residential unit that can include secondary buildings within the same plot. …

27.  I approach the meaning of dwelling by looking at the words themselves; the context in which they appear; and the overarching policy objective or “mischief”. The words “sub-division of an existing residential dwelling” tend in my view towards the dwelling being one physical building rather than a wider residential unit encompassing other buildings. Although it is always possible to posit clearer or different words that could have been used, if the Secretary of State had intended to encompass sub-division of the residential plot then it would have been more natural to use the words “the residential unit” or “the property”. To my mind, sub-division of a dwelling, implies a single building.

29.  Most importantly, in my view the context strongly militates towards a narrow interpretation. The sub-paragraphs in para 79 are exceptions to the general policy against creating new residential development in isolated rural locations. It is important to have in mind that the policy reason for not supporting new housing in such locations is that it would be fundamentally unsustainable, being poorly located for local services, and that sustainability lies at the heart of the NPPF. As such, it does in my view follow that the exceptions should be narrowly construed as being in general not supportive of sustainable development. The exceptions are all forms of development which could be said to enhance the countryside, whether by adding housing for rural workers, or reusing redundant buildings. As the letter from GLD dated 15 January 2020 states, para 79(d) makes sense in this context as allowing the sub-division of large properties into flats where that is a good use of the existing dwelling. To allow the sub-division of residential units by allowing separate buildings to become separate dwellings goes well beyond that limited exception.”

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