Local plans and housing supply
A “radical” change in the National Planning Policy Framework has rendered a council’s housing figures unsound, the Court of Appeal has ruled. Zack Simons reports.
The Court of Appeal’s judgment in Solihull Metropolitan Borough Council v (1) Gallagher Homes Limited (2) Lioncourt Homes Limited [2014] EWCA Civ 1610 sets out valuable guidance for all involved in the plan-making process on the objective assessment of housing need.
Background
The Respondents’ sites in the Tidbury Green area of Solihull were placed into the Green Belt by the Solihull Local Plan (“SLP”), adopted on 3 December 2013. They challenged the SLP on three grounds, namely that (i) it was not supported by an objectively assessed figure for housing need, within the meaning of the National Planning Policy Framework (“NPPF”), (ii) the council had failed in its duty to cooperate, and (iii) the council adopted a plan without regard to the proper test for revising Green Belt boundaries.
The SLP proposed a housing provision over the period 2006-28 of 11,000 dwellings. That figure was derived from the 2009 revisions of the now-revoked West Midlands Regional Spatial Strategy, and in the context of PPS3. The council contended that, albeit the SLP had not identified a figure for “objectively assessed need”, there was no requirement to identify such a figure. The RSS-derived housing figure had taken into account evidence of housing need as well as constraining policy factors. There had been no significant change in demographic trends or policy. In consequence, the council claimed that the requirements of the NPPF were satisfied.
The claim succeeded in the High Court before Hickinbottom J: click here.
Solihull appealed against that decision.
Judgment
Solihull’s appeal was dismissed. The leading judgment was given by Laws LJ, who held that although there are aspects of the NPPF which reflect earlier planning policy, “there are also significant changes”. Those changes include the requirement in NPPF paragraph 47 to “boost” housing supply “significantly”, and the formulation in NPPF paragraph 47 “to ensure that their Local Plan meets the full, objectively assessed needs…”. Laws LJ held that:
“The NPPF indeed effected a radical change. It consisted in the two-step approach which paragraph 47 enjoined. The previous policy’s methodology was essentially the striking of a balance. By contrast paragraph 47 required the OAN [objectively assessed need] to be made first, and to be given effect in the Local Plan save only to the extent that that would be inconsistent with other NPPF policies. […] The two-step approach is by no means barren or technical. It means that housing need is clearly and cleanly ascertained. And as the judge said at paragraph 94, “[h]ere, numbers matter; because the larger the need, the more pressure will or might be applied to [impinge] on other inconsistent policies”.
The Court held that the EiP Inspector and Solihull had failed to identify a figure for the objective assessment of housing need as a separate and prior exercise, and that was an error of law.
In addition, Laws LJ dismissed the Inspector’s reasons for returning the Respondents’ sites to the Green Belt, saying that:
“The fact that a particular site within a council’s area happens not to be suitable for housing development cannot be said without more to constitute an exceptional circumstance, justifying an alteration of the Green Belt by the allocation to it of the site in question.”
The relevant parts of the Plan will be remitted to the council for re-consideration.
Comment
The Court held that the policy change brought about by the NPPF is “radical”. It cannot be met simply by transposing the approach under previous policy – balancing need, demand and other questions of policy. §47 NPPF requires plan-makers to take a discrete step which was not required under PPS3: the express identification of a figure for full objectively assessed housing need. In taking that first step, Laws LJ endorsed Hickinbottom J’s comment that earlier figures from regional strategies can form a relevant starting point, but must be regarded with “extreme caution”. The Court also confirmed that Sir David Keene’s interpretation of §47 NPPF in Hunston (i.e. “the needs assessment, objectively arrived at, is not affected in advance of the production of the Local Plan, which will then set the requirement figure”) applies to plan-making as well as to decision-taking.
Zack Simons is a barrister at Landmark Chambers who, together with Christopher Lockhart-Mummery QC, acted for the Respondents. Christopher Katkowski QC, also of Landmark Chambers, acted for the Appellant, with Rowena Meager of No5 Chambers.
