Hallam Land Management Ltd v Secretary of State for Communities and Local Government & Anor

The Claimant challenges the decision letter of the Secretary of State for Communities and Local Government (“the Secretary of State”), dated 9 November 2016 (“the Hamble DL”), whereby he dismissed an appeal against the refusal by Eastleigh Borough Council (“the Council”), dated 17 July 2014 of outline planning permission for up to 225 residential units, plus a 60-bed care home and 40 extra care units, together with the provision of public open space and woodland, improvements to Hamble Station, and associated landscaping and access on land west of Hamble Lane, Hamble, Hampshire (“the Site”), in accordance with the recommendation of his Inspector, John Chase. The Inspector’s report (“the Hamble IR”) was published on 26 August 2015, following an Inquiry held on 23-30 June 2015.

Three weeks after the Hamble DL, by a decision letter dated 30 November 2016 (“the Boorley Green DL”), the Secretary of State allowed an appeal against the refusal of planning permission by the Council for up to 680 residential units, new local care centre, land for a two-form entry primary school, open space and associated infrastructure including details of a new junction arrangement for access to the site on Land to the North West of Boorley Green, Winchester Road, Boorley Green, Eastleigh, Hampshire, in accordance with the recommendation of his Inspector, David Nicholson. The Inspector’s Report (“the Boorley Green IR”) was published on 25 August 2016, following an Inquiry held on 17-19 and 24-27 May 2016.

The two appeals related to two sites within the same local authority area (Eastleigh Borough). They both lie within the countryside (designated under Saved Policy 1.CO of the Council’s adopted Local Plan, and within an area designated as Local Gap under Saved Policy 3.CO of the Local Plan).

Mr Thomas Hill QC, for the Claimant, advances four grounds of challenge:

Permission was granted on all four grounds by Gilbart J, following an oral renewal hearing on 19 April 2017.

Paragraph 14 of the National Planning Policy Framework (“NPPF”) contains the presumption in favour of sustainable development which in the context of decision making means (unless material considerations indicate otherwise):

•

“approving development proposals that accord with the development plan without delay and

•

where the development plan is absent, silent or relevant policies are out of date, granting permission unless:

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any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

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specific policies in this Framework indicate development should be restricted.”

Paragraph 49 of the NPPF provides that:

“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites.”

In Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, Lord Carnwath considered (at paras 54-61) the proper interpretation of NPPF paragraphs 14 and 49. At para 54 he said:

“… since the primary purpose of paragraph 49 is simply to act as a trigger to the operation of the ‘tilted balance’ under paragraph 14, it is important to understand how that is intended to work in practice. The general effect is reasonably clear. In the absence of relevant or up to date development plan policies, the balance is tilted in favour of the grant of permission, except where the benefits are ‘significantly and demonstrably’ outweighed by the adverse effects, or where ‘ specific policies’ indicate otherwise. …”

At para 59 he continued:

“… The important question is not how to define individual policies, but whether the result is a five year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14…”

At para 61 he said:

“… No-one would naturally describe a recently approved Green Belt policy in a local plan as ‘out of date’, merely because the housing policies in another part of the plan fail to meet the NPPF objectives. Nor does it serve any purpose to do so, given that it is to be brought back into paragraph 14 as a specific policy under footnote 9. It is not ‘out of date’, but the weight to be given to it alongside other material considerations, within the balance set out by paragraph 14, remains a matter for the decision maker in accordance with ordinary principles.”

It is common ground that the Secretary of State was wrong in the Hamble and Boorley Green DLs to conclude that Policies 1.CO and 3.CO were relevant policies for the supply of housing (see Hopkins Homes, per Lord Carnwath at paras 57-59, adopting a “narrow” interpretation of NPPF paragraph 49 under which relevant policies for the supply of housing simply means “housing supply policies”), however this error is of no avail to the Claimant.

Matters arising since the Inquiry were noted (DL5-8). Two other decisions also concerning housing land supply (“HLS”) in Eastleigh were forwarded to the Secretary of State in the Hamble appeal. On 24 May 2016 Inspector John Woolcock issued the Bubb Lane DL, determining that the Council could, at the time, demonstrate “something in the order of a four year supply” (Bubb Lane DL45); and on 7 October 2016 Inspector Boore issued his decision in the Botley Road DL in which he determined the HLS to stand at 4.25 years (Botley Road DL18). The Secretary of State stated that he had given “careful consideration” to the representations and submissions he received from the parties in relation to these two DLs (see also DL35 at para 13 below).

The Secretary of State found, so far as HLS was concerned, that the shortfall was “limited” (but he concluded that he should still afford “significant” weight to Policy 3.CO) (DL17).

The Secretary of State noted the Inspector’s comment that at the time of the Inquiry the Council were not able to demonstrate more than a four-and-a-half years’ supply of deliverable housing land, and that there is evidence of an existing need for affordable housing. Whilst the Secretary of State noted that the Council are now of the view that they are able to demonstrate a 4.86 years’ supply, he agreed with the Inspector that the provision of up to 225 homes, 35% of which would be affordable, would be “a significant advantage arising out of the scheme”, and it would help to meet the objectives of the Framework by boosting significantly the supply of housing and delivering a wide choice of high quality homes. The Secretary of State noted too that the choice of accommodation would also be boosted by the provision of 100 care and extra care spaces (see IR108 & 109, and DL19).

Under the heading “Planning balance and overall conclusion” the Secretary of State stated at DL29-36:

“29.

For the reasons given above, the Secretary of State concludes that the proposal is not in accordance with the development plan policies 1.CO and 3.CO and is not in accordance with the development plan as a whole. He has gone on to consider whether material considerations indicate that the proposal should be determined other than in accordance with the development plan.

30.

The Secretary of State notes that in their letter of 23 June 2016, the Council updated their position on the supply of deliverable housing land, now claiming to be able to demonstrate 4.86 years’ supply. In the absence of a five-year housing land supply, and having concluded that policies 1.CO and 3.CO are relevant policies for the supply of housing, the presumption in favour of sustainable development is engaged, meaning that permission should be granted unless any adverse impacts of doing so significantly and demonstrably outweigh the benefits.

31.

He considers that the provision of market and affordable housing in an area with an acknowledged shortfall, along with care facilities in this case carries substantial weight in favour of the development. The additional population and employment opportunities would assist the economic life of the area, as would the supply of homes in an area with an acknowledged shortfall, to which he gives moderate weight. The environmental and community benefits arising out of the station improvements carry moderate weight in favour of the proposal.

32.

Set against the indentified positive aspects is the environmental and social damage which would arise out of the loss of the gap between the surrounding settlements, involving the physical intrusion into an area of countryside, and contributing to the coalescence of those settlements, and loss of independent identity. The Secretary of State considers that this would be contrary to those policies of the Framework which apply the principle of recognising the different roles and character of different areas, and this carries significant weight against the proposal. He further considers that the loss of ‘best and most versatile’ agricultural land carries moderate weight against the proposal.

33.

The Secretary of State also considers that the appeal site performs a function which is specific to its location and which would be permanently undermined by the development.

34.

The Secretary of State considers overall that the adverse impacts of the proposal would significantly and demonstrably outweigh its benefits.

35.

The Secretary of State has taken into account the wide range of judgments and appeal decisions referred to in the inquiry and the post-inquiry representations but, having considered all the matters raised, he concludes that none is of such weight as to alter the balance of his conclusions.

36.

Overall he concludes that there are no material considerations which indicate that he should determine the case other than in accordance with the development plan. The Secretary of State therefore concludes that your client’s appeal should be dismissed.”

Mr Hill submits that the Inspector or the Secretary of State, in a case where the 5YHLS is in issue, is required to determine a workable 5YHLS figure or range. This comprises two elements, namely the housing requirement, or “full, objectively assessed needs” for housing (“FOAN”), and an assessment of the deliverable housing sites in the district.

The reason for this, Mr Hill submits, is obvious. The existence or otherwise of a 5YHLS will determine whether the “tilted balance” in NPPF paragraph 14 is engaged. The extent of the 5YHLS shortfall will then determine the weight to be given to the housing supply benefits of the scheme, which must be balanced against any “adverse effects” for the purposes of carrying out the “tilted balance” exercise.

In support of this submission Mr Hill relies on the obiter statement of Lindblom J (as he then was) in Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin) at para 60:

“…Paragraph 14 of the NPPF prescribes an approach to decision-making when relevant policies, including ‘[relevant] policies for the supply of housing’, are ‘out of date’. It does not, however, prescribe the weight to be given to the ability of a particular proposal to reduce a shortfall in housing land supply as a benefit to be put in the balance against ‘any other adverse effects’. This is a matter for the decision maker to judge, and the court will not interfere with that judgment except on Wednesbury grounds. Naturally, the weight given to a proposal’s benefit in increasing the supply of housing will vary from case to case. It will depend, for example, on the extent of the shortfall, how long the deficit is likely to persist, what steps the authority could readily take to reduce it, and how much of it the development would meet. So the decision-maker must establish not only whether there is a shortfall but also how big it is, and how significant …”.

In Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), Lang J said at para 28:

“In my judgment, in the instant case, the Inspector was required to make judgments, based on the evidence, as to the Claimant’s current FOAN or housing requirements and its housing supply in order to decide the issues in the appeal. As this was an application for a medium-sized housing development which was not in accordance with the Development Plan, the Inspector had to consider whether other material considerations indicated that planning permission should be granted. The Claimant’s level of housing need and supply was a material consideration, as reflected in the NPPF. The Inspector had rightly identified the Council’s housing land supply and housing need as a ‘main issue’ in AD10. In my view, he could not properly apply NPPF49 (which has to be read together with NPPF47) and NPPF 14 without first making those judgments. I consider that NPPF49 requires the Inspector to make his own judgment on the equation between housing needs and housing supply based upon the relevant evidence provided by the local planning authority and any other party to the inquiry. I also accept the Claimant’s submission that, in a case where housing needs and supply are in play, the extent of any shortfall in housing supply may well be relevant to the balancing exercise required under NPPF14: see Cheshire East Borough Council v Richborough Estates Partnership LLP [2016] EWCA Civ 168, per Lindblom LJ at [47].”

In Jelson Ltd v Secretary of State for Communities and Local Government [2016] EWHC 2979 (Admin), Green J reviewed the authorities concerning the requirement to identify a 5YHLS figure, and summarised the relevant principles (at para 13) as follows:

“(a)

an Inspector is required to make judgments as to the Claimant’s current FOAN or housing requirements and its housing supply in order to decide the issues in an appeal; (b) paragraph [49] NPPF requires the Inspector to form his/her own judgment on the equation between housing needs and housing supply based upon the relevant evidence provided by the local planning authority and any other parties to the inquiry; (c) where a Local Plan is outdated other sources of information can and should be considered; (d) where there is no robust recent assessment of full housing needs, the household projections published by the DCLG should be used as the starting point; (e) an Inspector must do the best possible with the material adduced and if needs be the Inspector must make the best of an unsatisfactory situation, making a choice between unsatisfactory sources; (f) if an Inspector is unable to identify a specific figure a bracket or range or an approximate uplift on the departmental projections suffice; (g) an Inspector is not required to undertake the kind of detailed analysis which would be appropriate at a Development Plan Inquiry; (h) an Inspector deciding an appeal on the best evidence available is not making a finding that is an authoritative assessment which binds the local planning authority in other cases; (i) in an exceptional case where the evidence before the Inspector is so lacking that it is impossible to perform an assessment the Inspector must say so and give reasons to explain why it was not possible to determine a working FOAN figure or range.”

Mr Hill submits that the Secretary of State failed to make the judgments required of him. Instead, having noted that the Council was now of the view that it was able to demonstrate a 4.86 years’ supply, he did not comment as to whether he accepted the Council’s revised position, or whether he preferred the evidence of the Claimant, most recently that the 5YHLS position was not more than 4.25 years, as found in the Botley Road appeal.

A shortfall of one year (i.e. a four-year housing supply) would represent a 20% shortfall as against the basic requirement to demonstrate a 5YHLS. For Eastleigh, this equates to a shortfall of over 800 houses. This cannot rationally, Mr Hill submits, be described as a “limited” shortfall.

In fact, it is clear, Mr Hill submits, that the Secretary of State reached no decision on this issue. Accordingly he erred by failing to reach any proper finding as to the 5YHLS position for the purposes of this appeal.

I do not accept that the authorities to which Mr Hill refers (at paras 16-18 above) require the decision maker “to determine a workable 5YHLS or range” in every case. In a case such as the present where there was inadequate housing supply on either sides’ figures, I agree with Mr Zack Simons, who appears for the Secretary of State, and Mr Paul Stinchcombe QC, who appears for the Council, that the Secretary of State was not required to fix a figure for the extent of that inadequacy.

In making judgments on the issues of housing requirements and housing supply the decision maker was not required to fix a figure for the precise extent of the Council’s housing shortfall. The key question is whether the housing supply is above or below five years. That is what Lord Carnwath in Hopkins Homes called the “important question” (para 59, see para 8 above), and Dove J in Eastleigh BC v Secretary of State for Communities and Local Government [2014] EWHC 4225 (Admin) called the “litmus test” (paras 1 & 8).

In Oadby & Wigston BC v Secretary of State for Communities and Local Government [2015] EWHC 1879 (Admin) (upheld by the Court of Appeal [2016] EWCA Civ 1040) Hickinbottom J (as he then was) commented that:

“42.(ii) The Inspector was patently not attempting to fix the housing requirements for the borough – he did not have to assess the precise figure for either the requirement or available supply (see South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin) at [11] per Ouseley J, and Cheshire East Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin) at [34] per Lewis J). He was concerned with the question as to whether the Council has demonstrated a five-year supply.

…

48.

… the Inspector was not required to identify the exact housing requirement figure if, by adopting a conservative figure, it is clear that the authority could not demonstrate a five year housing land supply…”

I agree with Mr Stinchcombe that fairly construed Green J in Jelson (see para 18 above) was not suggesting that it was necessary to conduct a full analysis of requirements and supply in every case. In Jelson “a central issue” at the Inquiry was whether the Council could establish that it had a five year supply of housing for the purposes of NPPF paragraph 47 (see paragraph 2 of the judgment).

As Gilbart J observed in South Oxfordshire District Council v Secretary of State for Communities and Local Government [2016] EWHC 1173 (Admin) at para 102 (confirming what he pointed out at paras 44-45 in Dartford BC v Secretary of State for Communities and Local Government [2016] EWHC 649 (Admin):

“It is not necessary to conduct a full analysis of requirements and supply in every case. Whether one has to do so depends on the circumstances.”

I do not consider such a conclusion to be inconsistent with Lang J’s judgment in Shropshire Council, where she said (at para 27) that “Inspectors generally will be required to make judgments about housing needs and supply”. In that case the claimant succeeded where the Inspector had failed to make any assessment of housing land supply at all, and such an assessment was necessary on the facts to determine whether NPPF para 49 was engaged (see para 28).

The Secretary of State agreed with the Inspector that the main material considerations in this case are those set out by him at para 88 of his Report (DL13). The extent of housing shortage was not one of them. When considering the scheme’s putative benefits, the Inspector advised the Secretary of State (at IR108) that:

“The Council acknowledge that they are not able to demonstrate more than a four-and-a-half years supply of deliverable housing land, and it is the appellant’s view that the actual level is significantly less. It is not necessary for this report to carry out a detailed analysis of the housing land supply position, which is better left to the Local Plan examination, where all the evidence is available to the inspector. However, it can be said that there is a material shortfall against the five-year supply required by NPPF para 47, and that there is evidence of an existing need for affordable housing. In these circumstances, the provision of up to 225 homes, 35% of which would be affordable, would be a significant advantage arising out of the scheme.”

I agree with Mr Simons that on the basis of that recommendation, and also having regard to the updated material before him from the Bubb Lane DL and the Botley Road DL, (the Claimant having provided no further evidence on HLS since the Inquiry), the Secretary of State was entitled to note the agreed shortfall, describe it as “limited” (DL17), and agree with his Inspector that the scheme’s contribution to the Council’s housing shortage would be “significant” (DL19). I do not consider that anything more was required.

Mr Hill submits that the Secretary of State failed to make a determination on the 5YHLS issue and he also failed to provide any reasons as to why it would not have been possible to determine the 5YHLS position in light of the extensive evidence before him. If the Inspector was genuinely unable to make the required judgment, he ought to have given adequate reasons to explain why he could not do so (Shropshire Council, per Lang J at para 31).

It follows from the conclusion I reached on Ground 1 that the Secretary of State did make the necessary judgments as to HLS. He was not required to fix a figure for the scale of the Council’s housing shortfall. I consider that the reasons he gave for his decision were intelligible and adequate for the parties (Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), per Lindblom J (as he then was) at para 19(1) and (2)).

Mr Hill submits that the conclusion of the Secretary of State in the Hamble DL that the 5YHLS shortfall was “limited” (DL17) is impossible to reconcile with his finding, just three weeks later, that “the housing land supply should be regarded as standing at around four years” in the Boorley Green DL (DL17), described as “significantly below five years” (Boorley Green IR 12.47).

I agree with Mr Simons and Mr Stinchcombe that the short answer to this point is that the Boorley Green DL was not in existence at the time the Hamble DL was issued and accordingly, it cannot have been a material consideration to which the principle of consistency can apply. The Boorley Green IR was extant at the material time of the Hamble DL but the principle of consistency in decision taking has no application to Inspector’s reports which are not decisions.

Mr Hill responds as follows:

I agree with Mr Stinchcombe that the Claimant is wrong to suggest that the Secretary of State had imputed knowledge of an undecided Inspector’s Report. The question of imputed knowledge in Hollis arose in the context of considering the admissibility of evidence in a case in which it was alleged that the decision was vitiated by a mistake of fact (see Glidewell J at 360). It is not authority for a wider proposition that the Secretary of State qua decision-maker has imputed knowledge of everything submitted to or produced by his Department (see Baroness Cuberlege of Newick v Secretary of State for Communities and Local Government [2017] EWHC 2057 (Admin), per John Howell QC (sitting as a deputy High Court judge) at para 105).

Even if the Secretary of State were to have had such imputed knowledge, the Claimant would have to establish that the Boorley Green IR was a matter that no reasonable decision maker should have failed to take into account in the circumstances.

In R (Plant) v Lambeth LBC [2017] PTSR 453, Holgate J said:

“62.

… although, it is for the court to determine whether a consideration is legally capable of being relevant, the general principle is that it is for the decision maker, in this case the council, to decide (a) whether to take a relevant consideration into account and, if it does so decide, (b) how far to go in obtaining information relating to that matter. Such decisions may only be challenged on the grounds that it was irrational for the authority not to take a legally relevant consideration into account or, having done so, not to obtain particular information…

63.

The test is whether, in the circumstances of the case, no reasonable authority would have failed to take into account the specific consideration relied upon by the Claimant, or to obtain further information. Lord Scarman held in In Re Findlay, at p.334, that this test is satisfied where, in the circumstances, a matter is so ‘obviously material’ to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation ‘notwithstanding the silence of the statute’…”

I do not consider that there is any basis for the contention that it would be irrational not to take into account an unpublished IR in separate inquiry proceedings relying on different evidence. It was for the Secretary of State to decide how far to go in obtaining information relating to the Council’s housing land supply, whether in other Inspector’s reports or elsewhere. For the same reasons I do not consider there was any breach of the Tameside duty or any duty of fairness and good administration.

In any event I agree with Mr Simons and Mr Stinchcombe that there was no material inconsistency between the Hamble DL and the Boorley Green DL. In each case the Secretary of State found that there was under five years’ supply of housing land and NPPF para 49 was engaged. The Secretary of State does not say in the Boorley Green DL (see DL17) that the shortfall he identified was “significant”; he did not adopt that terminology which is to be found only in the IR. In Boorley Green the Secretary of State accepted the conclusions of his Inspector that the Council’s “housing land supply should be regarded as standing at around four years”. That finding is consistent with the approach in the Hamble DL. In both cases the scheme’s contribution to reducing the HLS shortfall was given significant weight: “substantial weight” in the Hamble DL (DL31), and “considerable weight” in the Boorley Green DL (DL24).

Mr Hill repeats in relation to this ground much of the analysis and many of the submissions he made in relation to Ground 3. He submits that the Secretary of State’s conclusions concerning the weight to be given to policy 3.CO were directly influenced by his findings (such as they were) concerning the “limited”/“significant” extent of the 5YHLS shortfall (see para 11 above). In other words, the Secretary of State’s finding that “significant” weight should still be given to this policy in the Hamble DL (see, by contrast, Boorley Green DL14 where this policy was given only “limited” weight) was plainly distorted by his erroneous approach to the 5YHLS position.

Further Mr Hill submits that it is entirely unclear how the various considerations identified by the Court of Appeal in Hopkins Homes [2016] PTSR 1315 informed the overall judgment as to the weight to be given to policy 3.CO in the Hamble DL. The Supreme Court approved the Court of Appeal’s guidance on the approach to weight under NPPF paragraph 14. Lindblom LJ said at para 47 that the weight to be given to out-of-date policies for the supply of housing:

“…will vary according to the circumstances, including, for example, the extent to which relevant policies fall short of providing for the five-year supply of housing land, the action being taken by the local planning authority to address it, or the particular purpose of a restrictive policy – such as the protection of a ‘green wedge’ or of a gap between settlements…”

Mr Hill submits that it is not possible to see how these factors have been dealt with in the Hamble DL, so as to reach so fundamentally different a conclusion as that reached in the Boorley Green DL where these various considerations were referred to by the Secretary of State.

The Secretary of State, Mr Hill submits, was required to reach consistent decisions on these appeals concerning the weight to be given to policy 3.CO (see Pertemps Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2308 (Admin), per Lindblom J (as he then was) at paras 51-54), or alternatively to provide cogent reasons for declining to adopt a consistent approach. Again he repeats the submissions he made in relation to Ground 3 concerning the duty to have regard to the Boorley Green IR when determining the Hamble appeal.

I do not accept that the Secretary of State erred in the Hamble appeal in the balancing exercise he conducted. Absent an error of law, matters of weight are within the exclusive province of a decision taker. In the Hamble DL the Secretary of State attributed “significant weight” to Policy 3.CO for three reasons: its consistency with the NPPF; its role in protecting the Local Gap; and the limited shortfall in housing land supply (DL17). The finding that the 3.CO policy was a “relevant policy for the supply of housing” within NPPF para 49 has been superseded by the decision of the Supreme Court in Hopkins Homes, but the substance of his balancing exercise is unaffected.

For the reasons I have given in relation to Ground 3, I reject the Claimant’s contentions as to the need for consistency between the Hamble DL and the Boorley Green DL, and I consider that the Secretary of State in the Hamble DL gave rational reasons for attributing “significant” weight to Policy 3.CO (DL17).

In any event the Secretary of State’s approach to policy 3.CO in Boorley Green which resulted in him giving “limited” weight to that policy arose from the particular facts of that case (see Boorley Green DL14 and 19).

For the reasons I have given, none of the grounds of challenge succeed. Accordingly this claim is dismissed.