Local plan had failed to make prior objective assessment of housing needs

On housing, the National Planning Policy Framework (“the NPPF”) differed from the earlier national guidance in two major respects:

1. Consistent with the Localism Act 2011, the NPPF substituted localism for the regional, “top down”, approach to housing strategy, with planning authorities now being required to cooperate with neighbouring authorities to develop housing strategy themselves.

2. The NPPF emphasised the need to significantly increase the supply of housing. Paragraph 47 of the NPPF requires a two-step approach: first, an objective assessment of full needs for market and affordable housing (“OAN”), and then secondly a distinct assessment as to whether (and, if so, to what extent) other NPPF policies – including those designed to protect the environment – dictate or justify constraint in planned housing provision.

It is not enough:

– for all material considerations (including need, demand and other relevant policies) simply to be weighed together; or

– simply to determine the maximum housing supply available, and constrain housing provision targets to that figure.

In the Court of Appeal case of Solihull Metropolitan Borough Council v Gallagher Estates Ltd & Anor [2014] the respondents had applied to the High Court under s.113(3) of the Planning and Compulsory Purchase Act 2004 (“2004 Act”) to challenge, the planning inspector’s approval of, and the appellant’s adoption of, the Solihull Local Plan (“the SLP”).

Neither the SLP nor the inspector had provided any OAN. On the contrary the appellant said it was not necessary for a plan to identify such a figure.

The inspector had concluded: “Taking account of all the evidence and having examined all the elements that go into making an objective assessment of housing requirements, a total level of 11,000 dwellings or 500 dwellings/year represents an effective, justified and soundly based figure which would meet the current identified housing needs of the district over the plan period and, with the agreed amendments, is consistent with the overall requirements of national policy in the NPPF.”

The Council had not for its part proposed an OAN. The Court of Appeal said it was apparent from the inspector’s use of the words “consistent with the overall requirements of national policy in the NPPF” that the 11,000 was very plainly a “policy-on” figure, not an OAN within the meaning of NPPF paragraph 47.

The court attached weight to the judge at first instance’s findings that:

“When the [inspector’s] report is read as a whole, far from full objectively assessed housing need being a driver in terms of the housing requirement target – as the NPPF requires – it is at best a back-seat passenger. Nowhere is the full housing need in fact objectively assessed…..”

Neither the appellant council proposing the SLP nor the inspector recommending its adoption undertook an OAN as a separate exercise to prior to considering how other policies impacted on the housing need.

So the process by which the inspector came to recommend the adoption of the SLP did not meet the requirements of the NPPF. Neither the appellant council nor the inspector had undertaken or proposed the “two-step approach” which NPPF required and so the process and the recommendation were flawed by error of law.

The court had wide powers under s.113(7) of the 2004 Act. It could:

– quash the SLP;
– remit the case for re-examination by another inspector; or
– remit it to the appellant council for reconsideration by them in light of the Court of Appeal’s judgment.

The court did not consider that the legal flaws in the SLP could be cured simply by a further examination before a different inspector. The appellant council needed to “think again”. But it was not necessary to quash the SLP.

The court ordered the parts of the SLP tabulated in the schedule to the previous judge’s order to be remitted to the council requiring it to reconsider the proposed SLP in light of the court’s judgment and to fix the illegalities in their earlier preparatory work.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.