The Court of Appeal has recently issued a judgment covering the tilted balance, settlement boundaries and the standard method for calculating objectively assessed housing need. Howard Leithead sets out the key points.
In Oxton Farm v Harrogate BC  EWCA Civ 805:
- The Court of Appeal holds that it was not essential for a local planning authority to use the standard method to calculate its objectively assessed housing need when deciding a planning application.
- However, local planning authorities and developers should note that the current version of the National Planning Policy Framework (NPPF) makes clear that it is now only acceptable to depart from the standard method in prescribed circumstances in the context of plan-making.
The parties and the background
Oxton Farm had unsuccessfully sought judicial review of the decision of Harrogate Borough Council (the council) to grant outline planning permission for 21 new homes and a village shop in Bickerton, North Yorkshire in September 2018 and appealed the judgment of the High Court to the Court of Appeal.
Three development plan policies were relevant, policies SG1, SG2, and SG3:
- policy SG1 stated that Harrogate would make provision for 390 homes per annum;
- policy SG2 listed settlements and indicated that developments or infill limits would be drawn around these;
- policy SG3 stated that land outside the settlement limits in policy SG2 would be classified as countryside.
Bickerton was not included among the settlements listed as being suitable for development under policy SG2. However, an updated housing needs assessment had indicated that 669 new homes were required per annum, far higher than the 390 homes envisaged by policy SG1. The new housing need figure of 669 homes had not been calculated using statistics from the Office for National Statistics (ONS).
At the same time that the council was considering the planning application, it was also preparing a new local plan. One of the emerging plan documents adopted the housing needs assessment figure of 669 homes.
When the relevant officer prepared her report on the planning application, she referred to the housing needs assessment and said that limited weight should be given to policies SG1, SG2, and SG3 as they were based on a housing target that was out of date.
At the heart of Oxton Farm’s case was that the grant of planning permission was contrary to policy SG3.
In his judgment, with which the other judges agreed, Lewison LJ considered three issues:
- the basis upon which the “tilted balance” under paragraph 11 of the National Planning Policy Framework (NPPF) had been applied;
- whether the council made an error in law by not making projections based on ONS figures;
- whether reasons should have been given for the decision.
The basis upon which the “tilted balance” had been applied
The “tilted balance” refers to the presumption in paragraph 11(d) ii of the NPPF that, where the presumption applies, planning permission should be granted unless there are “adverse impacts which would significantly and demonstrably outweigh its benefits.”
Lewison LJ noted how out of date policies can trigger the “tilted balance” and that it will always be triggered where an authority is unable to demonstrate a five-years supply of housing land.
While the Judge noted that there was some unfortunate wording in the officer’s report, he said that it was clear enough that that the basis on which the “tilted balance” had been engaged was that the relevant policies were out of date.
The Judge accepted that some committee members could have read the officer’s report as advising that the “tilted balance” was engaged because the five-years supply of housing land was marginal and as the relevant policies were out of date. However, he further stated that if two reasons had been given for triggering the “tilted balance”, one good and one bad, then he did not think it could be said that overall the advice would have misdirected the planning committee to a serious extent.
Did the Council make an error in law by not making projections based on ONS figures?
Oxton Farm argued that projections based on ONS statistics should have been taken into account as:
- Paragraphs 2 and 212 of the NPPF both stated that the NPPF “must be taken into account in preparing the development plan and is a material consideration in planning decisions.”
- Paragraph 60 of the NPPF provided that, when determining the minimum number of homes needed, strategic housing policies should be informed by a local housing need assessment, conducted using the standard method in the PPG unless exceptional circumstances justify an alternative approach that also reflects current and future demographic trends and market signals.
- Therefore, the relevant ONS statistics should have been taken into account by the council when deciding whether to grant planning permission.
Lewison LJ said that this was wrong for three reasons:
First, the Judge said that the relevant Government policy clearly stated that: it was not mandatory to use the standard method; the purpose of the standard method was to determine the minimum starting point in deciding the number of homes needed in an area; and higher housing targets than those produced by using the standard method would be considered sound.
Second, the Judge said that the housing target in policy SG1 was well over five years old, that the council had considered the housing target when formulating the new development plan, and that it had taken the view that the housing target needed updating. He further said that, by paragraph 73 of the NPPF, the council was required to assess “local housing need” as defined by the glossary and that it was entitled to assess this using the standard method or by a justified alternative approach.
Thus, the Judge said that council was not required to use the standard method when carrying out the assessment, and that, once it had produced a target figure much higher than the figure in policy SG1, it was entitled to decide that policy SG1 was out of date.
Third, Lewison LJ said that target figure for housing in the officer’s report was the same figure that the council had used in the draft development plan. He further said that, in accordance with paragraph 48 of the NPPF, the council was entitled to give weight to an emerging development plan policy. Thus, the Judge concluded, the ONS figures were not a mandatory consideration.
Should reasons have been given for the decision?
Finally, Lewison LJ said that the council was not required to give reasons for issuing its decision.
The Judge noted that the common law requires that reasons should be given in some circumstances, such as where a planning committee had not followed an officer’s recommendation, or where the decision involved a substantial departure from Green Belt and development plan policies. But he concluded that the council was under no such obligation as it had followed the reasoning of the officer’s report and there was no other reason why it was required to provide reasons.
First, while the Court of Appeal held that it was not essential for the council to use the standard method to calculate its objectively assessed housing need, it is important to bear in mind that this case involved a planning permission that was issued in 2018 and that the relevant version of the NPPF was the 2018 version.
Although the 2018 version of the NPPF and the 2019 version (currently in force) are identical in many respects, the definitions of “local housing need” are different. The 2019 version makes clear that the standard method in the PPG should be used to calculate housing need, except in the context of plan-making, where a justified alternative approach may be used in exceptional circumstances in accordance with paragraph 60.
Thus, when deciding current planning applications, local authorities must use the standard method for determining whether they can demonstrate a five-years supply of housing land.
Second, the judgment further demonstrates the benevolent approach that the courts take to officer’s reports. It is not enough that there are errors or infelicities in a report. The courts will only intervene where a planning committee has been misled in a material way (meaning that but for the flawed advice the decision maker would or might have come to a different decision).