Legal viewpoint: A radical take on need assessment, by Zack Simons

A High Court judgement involving two sites in the West Midlands sets out valuable guidance for all involved in the plan-making process on the assessment of housing need.

The judgement suggests that the National Planning Policy Framework (NPPF) requires plan-makers to take a discrete step not required under Planning Policy Statement 3 (PPS3) - the express identification of a figure for full objectively assessed housing need.

The claimants’ sites had been placed in the green belt by the Solihull Local Plan, adopted last December. The plan’s housing provision was derived from 2009 revisions of the revoked West Midlands Regional Spatial Strategy (RSS) and in the context of PPS3.

The council contended that, although the plan had not identified a figure for "objectively assessed need", there was no requirement to do so. It argued that the RSS-derived figure had taken into account housing need evidence as well as constraining policy factors.

Mr Justice Hickinbottom found that the local plan inspector had not grappled with full objectively assessed housing need, as required by the NPPF. He accepted that housing data from an earlier RSS exercise can be used in preparing local plans, but warned that plan-makers using such a figure must do so with "extreme caution" because of the "radical policy change" on housing provision effected by the NPPF.

The judge said that under paragraph 47 of the NPPF, housing needs are "not just a material consideration, but a consideration of particular standing". He held that paragraph 47 requires full housing needs to be objectively assessed in some way, and that it is insufficient for NPPF purposes for all material considerations, including need, demand and other relevant policies, simply to be weighed together.

He confirmed the principle in St Albans City and District Council v Hunston Properties and Secretary of State for Communities and Local Government [2013] that paragraph 47 applies not only to decision-taking but to plan-making. In that context, he said that "in plan-making, full objectively assessed housing needs are not only a material consideration, but a consideration of particular standing with a particular role to play".

The judge also held that the inspector had failed to identify exceptional circumstances to justify modifying the green belt. He found that the inspector had simply weighed material factors and exercised his planning judgement on whether the claimants’ sites should be in the green belt. He found that this fell "very far short of the stringent test for exceptional circumstances that any revision of the green belt boundary must satisfy".

Christopher Lockhart-Mummery QC and Zack Simons of Landmark Chambers acted for the claimants.

Gallagher Homes and Lioncourt Homes v Solihull Metropolitan Borough Council; Ref: [2014] EWHC 1283 (Admin); Date: 30 April 2014

Zack Simons is a Barrister at Landmark Chambers

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