Council not required to take into account an emerging five year housing land supply statement
Planning and Environment, Public Law and Judicial Review
Robin Purchas QC, sitting as a High Court Judge, has dismissed a claim for judicial review brought by Chilton Parish Council against Babergh District Council’s grant of planning permission for up to 130 dwellings.
The main issue considered by the learned judge was whether an emerging 5-year housing land supply figure was a material consideration for the purposes of s.70(2) Town and Country Planning Act 1990, such that it was an error not to consider it before granting a permission.
The factual background
At the date both of the Council’s decision to grant and at the date of actual grant the Council’s published position, contained in its 2016/17 AMR (which was by then over a year old), was that it could not show a 5yhls. That was the basis upon which the officer’s report to the committee proceeded, and the basis upon which the Committee took its decision.
The decision was minded to grant subject to a section 106. That section 106 was completed within a matter of weeks and the permission was issued. However, four working days after it was issued the Council published it’s up to date assessment, contained in a new AMR for 2017-2018, which demonstrated a 6.7 years hls.
Before the date of grant the Council had received final advice from Counsel as to its approach and was in a position to have reached a final conclusion but the first draft AMR was only prepared the day after the grant and it was not scrutinised and then signed off by senior offices till four working days after the grant.
It was only at that stage that the information was publicised both internally and externally. Before the date of the grant the only officers of the Council who were aware of the emerging position and the possibility of a 5yhls being demonstrated were those charged with preparing the new AMR but the actual officer who was required to approve the new AMR was not provided with the draft AMR until after the day of grant.
First, the judge found that the internal knowledge of the relevant officers that the 5yhls might change was not so obviously material that it would be irrational to fail to consider it, applying the test summarised in DLA Delivery v Baroness Cumberlege of Newick  EWCA Civ 1305 at paragraphs [21-24].
The judge noted it would be surprising, given in particular paragraphs 47 and 49 of the Framework (as applicable at that date), if an internal working draft 5yhls was required to be put into the public domain. He also found the approval of senior management should not be regarded as a mere formality.
Whilst the Claimant claimed that the Defendant was virtually certain that it could demonstrate a 5yhls from its emerging 5yhls statement, and that this was a material consideration, the judge found “inherent difficulties with this position” because it would be “artificial” to deem a working draft document as conclusive. With this in mind, he considered the Defendant was correct to rely on its existing published 5yhls figure absent a new published statement updated in accordance with national policy.
Second, the judge found that guidance in R(on the application of Kides) v South Cambridgeshire DC  EWCA Civ 1370 as to when a decision to grant should be taken back to the Committee did not apply. Such guidance should be applied with common sense and in context. The emerging 5yhls statement was being prepared by the Strategic Planning Department, whilst the delegated officer was part of the Management Team.
Knowledge of officers of the first should not be imputed to those in the second team. Neither was there any obligation on the Management Team to request an update on the emerging 5yhls position. Indeed, had they done so, they are likely to have been told the statement was not complete.
Point to note
Whilst the case was determined on its particular circumstances, including that there was no complaint in law as to the process by which the new AMR was formulated, the important point to note is that in general terms an authority does not need to publish its emerging deliberations on housing land supply until they have been finalised.
James Findlay QC and Clare Parry appeared for the successful District Council.
James and Clare are members of the Cornerstone Planning Team and act for both developers and local authorities in a wide range of planning matters.