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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Edward Ware Homes Ltd v Secretary of State for Communities and Local Government & Anor [2016] EWHC 103 (Admin) (27 January 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/103.html Cite as: [2016] EWHC 103 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Edward Ware Homes Ltd |
Claimant |
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- and - |
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Secretary of State for Communities and Local Government -and- Bath and North Somerset Council |
First Defendant Second Defendant |
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Hereward Phillpot Q.C. (instructed by Treasury Solicitor) for the First Defendant
The Second Defendant was not represented
Hearing dates: 7th December 2015
____________________
Crown Copyright ©
Mr. Justice Holgate:
Introduction
"Whether there is a 5-year housing land supply available in the Housing Market Area, and how that may bear upon the relevance of development plan policies affecting the direction for growth and the release of housing sites."
The grounds of challenge relate to the manner in which the Inspector dealt with that issue adversely to EWHL. The decisions on both the Paulton and Midsomer North sites also included adverse findings on other aspects of the appeal proposals. But the Secretary of State accepts that the Inspector did not treat any of those findings as a freestanding reason sufficient to justify the dismissal of the appeals, irrespective of the Inspector's treatment of the housing land supply issues. Accordingly, the parties agree that I am able to deal with the merits of each of the claims by reference to the material in CO/3062/2015.
The National Planning Policy Framework
"- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the polices in this Framework taken as a whole, or
- specific policies in this Framework indicate development should be restricted."
"[Paragraph 14 of the NPPF] does not prevent a decision-maker from giving as much weight as he judges to be right to a proposal's conflict with the strategy in the plan…."
The Bath and North East Somerset Core Strategy
"there is deliverable space to enable job growth in the towns and principal villages…to a create a thriving and vibrant area which is more self-reliant socially and economically"
Policy DW1(2) makes provision for (inter alia) "an increase in the supply of housing by around 13,000 homes" in the district as a whole. Policy DW1(3) prioritises "the use of brownfield opportunities for new development in order to limit the need for development on greenfield sites."
Bath | 7,250 | (54%) |
Keynsham | 2,150 | (16.5%) |
Somer Valley | 2,470 | (19%) |
Rural Areas | 1,120 | (8.5%) |
Whitchurch Green Bell | 200 | (1.5%) |
12,960 |
Paragraph 1.26g of the Core Strategy states:-
"The strategy is to locate new development in the most sustainable locations and the priority is to steer growth primarily to brownfield land in urban areas of Bath, Keynsham and the larger settlements in the Somer Valley."
However, the Core Strategy recognises that in order to meet housing requirements and facilitate economic growth some greenfield land is also required.
"In the Somer Valley there is significant net out-commuting due the (sic) size of the employment base but there are also significant residential commitments on both greenfield and brownfield sites. The area does not have an operating rail link, there are no direct links to the motorways and there is limited scope to provide substantial infrastructure improvements in the Plan period. The strategy therefore recognises this position, and seeks to facilitate economic-led regeneration enabling job growth in the area. The focus for change will be in the town centres and on vacant and under-used sites within the Housing Development Boundary. The Housing Development Boundary will be reviewed in the Placemaking Plan."
"Paulton was originally an agricultural village which grew significantly as a result of coal mining. Following closure of the mines its economic base became industrial printing. In the last twenty years a number of the larger local employers including Polestar have closed resulting in reduced local employment opportunities, increased out-commuting, but also a number of redevelopment opportunities."
Under the heading "Strategic Issues" paragraph 4.08 states:-
"Recent incremental housing development and a decline in the manufacturing sector has led to an imbalance between jobs and homes."
Paragraph 4.09 identifies a number of challenges and strengths for the Somer Valley. There are "high levels of out-commuting due to lack of local employment opportunities" and a "high level of existing housing commitments of about 2,470 dwellings, exacerbating imbalance of housing over jobs". As against those factors, the Somer Valley enjoys "relative lower cost of housing compared to elsewhere in the district".
"There is already a significant number of housing commitments in the Somer Valley and a limited capacity to generate new jobs. New housing on the Somer Valley will therefore be restrained in the interest of sustainability but some additional housing is likely to come forward on brownfield sites. The Housing Development Boundary will be reviewed in the Placemaking Plan to facilitate this and to reflect recent planning permissions on greenfield sites. However, in light of the objective of economic led revitalisation, it is important that the additional housing does not significantly worsen the balance between homes and jobs and the out-commuting problems and the Council may therefore seek to ensure an economic benefit from new housing."
The Inspector's decision letter
- 5 year housing land supply (DL 5 to DL 31)
- whether the proposal would represent unsustainable development on other grounds (DL 32 to DL 45)
- conditions and section 106 obligation (DL 46 to DL 50)
- overall conclusions (DL 51 to DL 53)
5 year housing land supply
(i) Under policy DW1 there is a need for 13,000 new homes across the district over the plan period 2011 – 2019. It was common ground that because of the under-delivery of housing which had previously occurred, the 5 year land supply requirement had to be increased by 20% (DL 5);(ii) According to the supporting justification in the Core Strategy for policy DW1 the distribution of housing sites across the district is divided into 5 policy areas. Bath is the primary focus for new development and in the Somer Valley a balance should be achieved between jobs and houses so as to minimise the need for out-commuting from that area. In order to support a sustainable pattern of development, the Core Strategy is based upon a strong rationale for directing growth at appropriate levels or proportions into the various policy areas (DL 6);
(iii) Although BANES relied upon the endorsement by the Inspector who conducted the examination of the Core Strategy that there was a 5 year land supply, it was not unreasonable for EWHL to challenge that view on the basis of up to date information. BANES accepted that there were weaknesses in the information presented to the examination, and also that not all of the sites in its latest version of the Strategic Housing Land Availability Assessment ("SHLAA") would come forward, either as soon as projected or at all. BANES therefore conceded that its estimate of the 5 year supply of housing land should be reduced from 5,945 dwellings to 5,407. On the other hand EWHL contended that the figure should be as low as 4,589 (DL 7 to DL 12);
(iv) For the reasons set out in DL 6 (see point (ii) above) it was agreed between the parties at the inquiry that the distribution of 5 year supply figures should be considered against the apportionment in DW1. Tables 1 and 2 of the decision letter then set out how that distribution would translate into (a) an annual requirement figure for each policy area over the 18 year period of the plan and (b) a 5 year requirement figure for each policy area, taking into account adjustments for an agreed "back-log" and the 20% uplift (DL 13 to DL 15). [On this basis the 5 year requirement figure for the district as a whole was given in Table 2 as 5,022 rather than the agreed figure of 5,062. But it was common ground in the hearing before the Court that the difference between these two figures is immaterial for the purposes of these proceedings].
(v) Taking into account the concessions made by BANES, Table 3 set out the supply of housing land over 5 years both for the 5 policy areas and the district as a whole using the Council's data. On those figures BANES could demonstrate 5.38 years' supply for the district as a whole (and on that basis the presumption in paragraph 14 of the NPPF would not apply) and a supply in excess of 5 years for all policy areas other than Bath. However, the Inspector gave reasons as to why the revised figures adopted by BANES should not be treated as determinative (DL 16 to DL 18);
(vi) Using data relied upon by EWHL, taken from Table 15 of the proof of evidence of its expert Mr. Harbottle, Table 4 in the decision letter shows the 5 year supply position for the district as a whole and by policy area. On that basis the Inspector accepted that there would not be a 5 year supply for the district as a whole and the presumption in paragraph 14 of the NPPF would apply. In other words "planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole" (DL 19 to DL 21);
(vii) Even if it were to be confirmed that there is a shortfall in the 5 year land supply for the district, it is also relevant to consider whether it is appropriate to grant permission to address that shortfall in locations, which although acceptable in all other respects, could skew the sustainable distribution of growth embodied in policy DW1 of the Core Strategy. That Strategy was only recently adopted and there are sound reasons (set out in DL 6) for supporting the distribution of development between the 5 policy areas set out in policy DW1 (emphasis added). [The parties agreed that that reference to DW1 should also be taken to embrace Table 1b and policy SV1 of the Core Strategy]. The "plan-led" principle in paragraph 17 of the NPPF was of "paramount importance" in the circumstances of the appeal (DL 22 to 23);
(viii) Whether using the figures of BANES (Table 3) or EWHL (Table 4) there is a greater than 5 year supply for the Somer Valley and no "urgent necessity" to increase the supply of housing land in that area (DL 24);
(ix) The figure of 2470 for the Somer Valley (given in SV1) is not a cap. It is "an indicative about figure", suggesting that variations above and below that figure would be compliant with policy. On the basis of the data supplied both by BANES and by EWHL, an excess of up to 10% might not unduly skew the overall target for the Somer Valley policy area. But such figures relate to land supply over the whole of the plan period (DL 25 and 26 in both decision letters);
(x) The appeal sites would bring the land supply in the Somer Valley to something over 50% of the allocation for the 18 year period of the Core Strategy within the first 8 years of the plan (44%), leaving only 890 or 967 of the 2470 required by the plan to meet the needs of the last 10 years of the plan period. Consequently the rate of growth within Somer Valley "would be significantly biased towards the beginning of the plan period". If all permissions were to be built-out then this could lead to the situation where greater restraints might have to be applied towards the end of the plan period, leaving the plan potentially unable to respond appropriately to future – and as yet unforeseen – needs. That would not be consistent with the plan, monitor, manage principle underlying the local plan system (DL 26 to DL 27);
(xi) "More to the point the corollary of allowing a greater proportion of housing development in the Somer Valley solely to make up the possible overall shortfall across the District, would undermine and dilute the strategy of directing the main initiatives for growth to Bath and accommodating a smaller proportion of additional housing in the other Policy Areas – where some degree of limitation or restraint is seen to be appropriate for reasons of achieving a balanced, sustainable growth strategy". Even on the figures in Table 4 (i.e. using EWHL's data), it would be contrary to the first core planning principle (the plan-led system – see paragraph 17 of the NPPF) "to permit a dilution of its strategy [the Core Strategy] so early in the plan period by diverting pressure away from the Bath Policy Area" (emphasis added). The failure to comply with paragraph 49 of the NPPF should be addressed within the Bath Policy Area and not the plan area as a whole (DL 28 to DL 29);
(xii) Drawing the points together on the first main issue, although the figures from BANES were not reliable and the figures from EWHL were too pessimistic, on either view there is a greater than 5 year supply in all policy areas except Bath. It would not be in accordance with core planning principles in the NPPF to accept that the shortfall in housing local supply in the Bath area "automatically justifies" permitting additional housing elsewhere across the district. Applying paragraph 14 of the NPPF, permitting additional significant growth in areas outside Bath would undermine the principles of sustainable development in the Core Strategy, which, so soon after its adoption, would undermine the plan-making process and constitute "an adverse impact that would significantly and demonstrably outweigh the benefits of topping up the housing supply by permitting further development in the Somer Valley" (DL 30 and DL 31);
The Inspector's Overall Conclusions
"51. I have come to the conclusion that there is a shortfall in the 5-year housing land supply in the Housing Market area, and therefore the expectations set out at paragraph 49 of NPPF come into play. However, for rational reasons of promoting sustainable development, the Housing Market Area requirement given in the CS is distributed across five Policy Areas and it is only in the Bath Policy Area that there is a shortfall in supply; in the Policy Area relevant in this appeal (Somer Valley) there is more than a 5-year supply of developable housing land. Despite the shortfall in the Bath Policy Area, I do not consider that the CS can be considered to be out of date and that paragraph 14 of the NPPF is not engaged in the determination of this appeal in seeking to address the shortfall.52. Nevertheless, even though there may be a 5-year land supply, this does not automatically preclude granting planning permission for further development, subject to the proposed scheme complying with other development plan policies. However, as discussed above, I have concluded that granting planning permission for the proposed development would unacceptably prejudice the implementation of the Core Strategy, and would be contrary to the objectives of the BANESLP.53. Although there are positive aspects of the scheme, not least the 35% proportion of affordable housing being offered, I consider that the adverse impacts of approving the proposal would significantly and demonstrably outweigh the benefits. Accordingly the appeal should be dismissed."
Legal Principles for challenging an Inspector's decision
(1) The Inspector took into account an irrelevant consideration, namely the 5 year supply of housing land in the 5 policy areas rather than simply the district as a whole;
(2) The Inspector took into account an irrelevant consideration, namely that there would be harm to the spatial strategy in the Core Strategy as a result of the appeal schemes being delivered in the Somer Valley;
(3) The Inspector took into account an irrelevant consideration, namely that there would be harm to the spatial strategy in the Core Strategy through the front-loading of the delivery of housing in the Somer Valley area;
(4) The Inspector failed to take into account a relevant consideration, namely the contribution of the appeal schemes to the 5 year supply of housing land for the district as a whole;
(5) The Inspector failed to determine whether the appeal schemes accorded with the statutory development plan pursuant to section 38(6) of PCPA 2004;
(6) The Inspector misdirected himself as to the NPPF by failing to apply the presumption in paragraph 14.
Ground (6)
Ground (4)
Ground (1)
Ground (2)
(i) frontloading the supply of housing land into the first 8 years of the plan period (DL 26 to DL 27) and(ii) diverting growth away from the Bath area (DL 28 to DL 29) (and see paragraphs 18 to 19 above).
It emerged during oral argument that what grounds (2) and (3) are really concerned with are points (ii) and (i) respectively.
Ground (3)
(i) The Somer Valley exhibits the greatest planned imbalance between homes (2470 new dwellings) and jobs (900) over the plan period;(ii) The delivery of homes is all but guaranteed whereas the increase in employment is more uncertain and will take more time to materialise. Even if the employment targets are reached the Somer Valley will become more of a road-based commuting centre during the plan period;
(iii) Whereas the Somer Valley has been "haemorrhaging" employment rather than gaining it, approximately 2051 units (or 83%) of the housing requirement of 2,470 has been built or has planning permission three years into the plan period. Assuming that this is largely built out by 2019 in accordance with the housing trajectory issued by BANES, the vast majority of planned housing supply will have been built in the first half of the plan period;
(iv) However, there is no development plan policy to manage the release of additional housing land by reference to the grant of planning permission for employment growth.
Ground (5)
Conclusions
Note 1 This judgment uses the convention of DL followed by a number to identify a particular paragraph in the decision letter. [Back]