Mon, 10 Mar 2014
Richard Kimblin, Satnam Choongh and James Corbet Burcher act for Barwood in Successful Defences of Section 288 Challenges brought by South Northamptonshire Council:  EWHC 570 (Admin) and 573 (Admin)
Mr Justice Ouseley has today handed down judgment in two section 288 statutory appeals brought by South Northamptonshire Council against the decisions in two successful appeals by Barwood Homes against refusal to grant permission for residential housing development at Silverstone and King’s Sutton: South Northamptonshire Council v Secretary of State for Communities and Local Government and Barwood Land and Estates Ltd ( EWHC 573 (Admin)) “ Silverstone”; and South Northamptonshire Council v Secretary of State for Communities and Local Government and Barwood Homes ( EWHC 570 (Admin) “King’s Sutton”).
Richard Kimblin acted for Barwood Land and Estates Ltd in relation to the Silverstone challenge and Satnam Choongh and James Corbet Burcher acted for Barwood Homes Ltd in relation to the King’s Sutton challenge. The appeals were heard separately but consecutively on 13 and 14 February 2014. Both cases follow upon the earlier judgment in South Northamptonshire Council v Secretary of State for Communities and Local Government and Robert Plummer  EWHC 4377.
Hunston, Paragraph 47 and the Effect of the Revocation of the RSS
The judgments are principally important as detailed considerations of the Court of Appeal’s judgment in City and District of St Albans and Hunston Properties v SSCLG  EWCA Civ 1610, notably the correct interpretation of paragraph 47 of the NPPF: “the full objectively assessed needs for market and affordable housing in the housing market area”, specifically the scope for taking into account Regional Spatial Strategy/Regional Strategy.
The Council contended that the respective Inspectors were not entitled to have regard to the RSS following its revocation, in the calculation of need, five year housing land supply and persistent under-delivery, as the impact of the judgment in Hunston was that the revoked RSS was “legally irrelevant”.
Mr Justice Ouseley rejected that submission and observed of Hunston at -:
“30. In my judgment the crucial point to take from the Hunston case is how to interpret paragraph 47 (i) of the NPPF, relating the requirement for a full objective assessment of housing needs in the housing market area to the subsequent qualification that that be done so far as is consistent with the policies in the Framework, before the Local Plan is produced, reconciling or balancing the two aims.
31. Before that happens through the Local Plan, the full objectively assessed housing needs of the area are not subject to the constraints of policy. Those constraints fall for consideration later on in the development control decision-making process, as the Court of Appeal pointed out; for example in a Green Belt case, the question will be whether a shortfall of housing land supply against those fully assessed needs constitutes very special circumstances so as to permit inappropriate development in the Green Belt. The question is not whether the Green Belt constrains the assessment, but whether the Green Belt constrains meeting the needs assessed. Once the Local Plan is adopted, it is the constrained needs in the Plan which are to be met.
32. A revoked RSS is not a basis for the application of a constraint policy to the assessment of housing needs, because it has been revoked and cannot be part of the Development Plan. The same would be true of an out of date Local Plan which did not set out the current full objectively assessed needs. Until the full, objectively assessed needs are qualified by the policies of an up to date Local Plan, they are the needs which go into the balance against any NPPF policies. It is at that stage that constraints or otherwise may apply. It may be problematic in its application, but that is how paragraph 47 works.
33. In principle, what is said about full objectively assessed housing needs must apply where the revoked RSS figure was based on growth projections or policies which went beyond a full objective assessment of housing needs. In practice, it may be more difficult to judge the extent to which those objectively assessed needs in the housing market include or exclude a former growth strategy in a revoked or out of date plan. But that remains a planning judgment.”
Applying those principles in the instant cases, the judge found cumulatively across the two judgments:
1. The Inspectors (and Secretary of State in Silverstone) were entitled to have regard to the RSS in determining the best figure for full objectively assessed needs. Here that choice was between the Council’s figures based largely upon its emerging Joint Core Strategy (JCS) and the Appellants’ figures which involved greater reliance upon the former RSS (Silverstone ; King’s Sutton, -). Hunston did not decide that a revoked RSS was “expunged from history” (Silverstone, , King’s Sutton, ). The Silverstone Inspector had rejected the emerging JCS as it “suffered from sufficient weakness and uncertainty that it could not be regarded as weighty, let alone as containing the full objectively assessed housing need figure”. Moreover, the Council had provided “no evidence of the extent to which the RSS figure for South Northamptonshire had been inflated, if at all, by the former growth strategy” (Silverstone, ), the “total housing requirements between 2001 and 2026 are not materially different under the emerging JCS and the RSS” (King’s Sutton, ).
2. The Inspectors were further entitled to have regard to the historic under performance against the RSS in calculating shortfall. Again, there was no evidence before the Inspectors that “the figures from the RSS, which were the derivation of the shortfall, should have become irrelevant to the objective assessment of housing needs because of the revocation of the RSS and its growth strategy” (Silverstone, ; King’s Sutton ).
3. Finally, the Inspectors were entitled to rely upon the RSS in finding persistent under-delivery sufficient to set the buffer at 20% (Silverstone, ) The identification of persistent shortfall was not surprising “given the deliberately restrictive policies, the out of date plan and the hopeful cure from 2016 onwards” (Silverstone, ; King’s Sutton ).
Paragraph 49 NPPF: Policies for the Supply of Housing
The Silverstone judgment contains further observations in relation to the definition of “policies for the supply of housing” in paragraph 49 of the NPPF. The judge followed the decision of the High Court in Plummer which had already considered the relevant policy EV2, “falling somewhere between [William Davis Ltd v SSCLG  EWHC 3058 (Admin)] and [Cotswold DC v SSCLG  EWHC 3719 (Admin)])
The judge held:
“47. It is my judgment that the language of the policy cannot sensibly be given a very narrow meaning. This would mean that policies for the provision of housing which were regarded as out of date, nonetheless would be given weight, indirectly but effectively through the operation of their counterpart provisions in policies restrictive of where development should go. Such policies are the obvious counterparts to policies designed to provide for an appropriate distribution and location of development. They may be generally applicable to all or most common forms of development, as with EV2, stating that they would not be permitted in open countryside, which as here could be very broadly defined. Such very general policies contrast with policies designed to protect specific areas or features, such as gaps between settlements, the particular character of villages or a specific landscape designation, all of which could sensibly exist regardless of the distribution and location of housing or other development.
48. However, once the Inspector has properly directed himself as to the scope of paragraph 49 NPPF as he did here, the question of whether a particular policy falls within its scope, is very much a matter for his planning judgment. In this case, the policy clearly falls within the scope of the phrase and the Inspector was fully entitled to reach the conclusion on it which he did.”
Calculation of Housing Land Supply
Finally, in the King’s Sutton case, the court was required to consider the scope for a challenge on grounds of inadequate reasons where the Council contended, that components of the housing land supply had been ignored or miscalculated.
In a detailed consideration of the Inspector’s report, the judge found that notwithstanding some potential lack of clarity on the calculation of the overall figure,  and a potential omission in relation to windfalls , the Council’s calculations (which had shown a “want of consistency” changing through the course of the litigation, which would have benefited from “short simple tabulation” ) still brought the figure significantly short of the target figure, adding in the 20% buffer required. The errors of reasoning, if there were such errors, could not have affected the outcome.
Both Richard Kimblin and Satnam Choongh had appeared in the relevant appeals, and the cases demonstrate the enduring scope for litigation across the residential housing sector and the value of Interested Party representation in the joint defence of such claims alongside the Secretary of State.