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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]

 

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]

 

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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