Secretary of State (belatedly) reveals thinking on a number of crucial housing land supply controversies

01 Jan 2018

Planning and Environment, Public Law and Judicial Review

Last week the Secretary of State published his decisions in respect of two appeals against refusals of planning permission for extensive housing development in the countryside beyond the Green Belt in Essex. Uttlesford DC had turned down both applications – totalling up to 1500 homes in total – on the principal basis of conflict with their development plan, and claimed to have a 5-year supply of housing land excluding the two sites. At the conjoined inquiry in autumn 2014, each Appellant contended that UDC did not have a 5-year supply. In a decision which gives valuable insight into the Secretary of State’s view of a number of the key controversies of the housing land supply debate, the Council’s position on almost every aspect was upheld, largely in line with the Inspector’s own conclusions:

While there was no dispute that the backlog – however calculated – should be recovered over 5 years (as per the so-called ‘Sedgefield’ method), the Appellants argued that a ‘backlog’ going back to before the start of the plan period (and re-based OAN calculation) – indeed back to 2001 – should be added to the OAN. The Inspector rejected this [DL15.14], and his rejection was upheld by the SoS (at para 23): there is no requirement to add to the OAN to cater for any shortfall calculated against years preceding the 2011 base-year of the plan.

20%/5% buffer
The Council considered it had not persistently under-delivered; the Appellants contended that it had. Both the Inspector and SoS concurred with the Council. Of particular note is the finding [DL15.15], specifically upheld by the SoS (at para.23), that the appropriate ‘benchmark’ against which to assess past delivery was the RSS annual figure dating from 2008. Prior to the RSS there were global (i.e. not annual) figures.

Affordable Housing
While it was not in dispute that the provision of AH was a benefit of the proposals worthy of significant weight, the Appellants argued that the OAN should be increased substantially in order to ensure that ‘full’ affordable housing need was met as part of it. the Council resisted such an approach. The Inspector and SoS agreed with the Council: “neither the Framework nor the PPG suggest that the affordable housing needs need to be met in full in the OAN, on the grounds that this may produce a figure which has no prospect of being delivered in practice” (para.25).

This is particularly interesting in light of the debate about the role of AH need recently played out in the (subsequent) cases of Satnam Millenium Ltd v Warrington BC [2015] EWHC 370 (Admin), Oadby & Wigston BC v SSCLG [2015] EWHC 1879 (Admin) and Kings Lynn & West Norfolk BC v SSCLG [2015] EWHC 2464 (Admin). Given that the evidence in this case was given and tested in the autumn of 2014 – and the Inspector’s Report drafted in May 2015 – it is the SoS’s remarks on this that are of most relevance.

Lapse Rate
Neither the Inspector [DL15.24] nor the SoS (para. 28) was persuaded of the case for including a ‘lapse rate’ to the planned supply, as suggested by the Appellants. They found no evidence to justify such an adjustment. Although not expressed in these terms, it is suggested that the imposition of a lapse rate is, in principle, inappropriate in any event given that in calculating a 5-year supply of housing land, the NPPF requires inclusion only of ‘deliverable’ sites (as defined in the NPPF), and not certainty.

The Inspector [DL15.29] and SoS (paras. 32 & 42) attached reduced weight to the delivery of housing on the basis that very few of the proposed houses would in fact be delivered in the next 5 years. Had there been no 5-year supply this point may well have been more central.

Finally, the SoS disagreed with the Inspector on one issue of policy. UDC has a (relatively standard) countryside protection policy which aims to ‘protect’ the countryside beyond the green belt, which the SoS finds (at para. 34) to be consistent with the NPPF principle that the intrinsic character and beauty of the countryside should be recognised while supporting thriving communities within it – as argued by the Council. As such the breach of that policy engendered by the proposals attracted significant weight notwithstanding that the Plan was out of date itself (and it follows that it may well have continued to attract significant weight even if ‘not up to date’ as a result of there being no 5-year housing land supply, in light of Lindblom LJ’s comments in Suffolk Coastal DC v Hopkins Homes Ltd [2016 EWCA Civ 168).

Overall both the inspector and the SoS, in each appeal, found that the harms ‘clearly and demonstrably outweighed’ the benefits of the proposals and dismissed the appeals.

Josef Cannon represented UDC in both appeals. The full decision letters can be accessed here.