Legal Viewpoint: Assessing housing need is a matter of judgement

The assessment of housing need is a topical issue. Last September, the government consulted on a new standard methodology for assessing housing need intended to make the process "simpler, quicker and more transparent".

Kathryn Hampton is senior knowledge lawyer at Hogan Lovells
Kathryn Hampton is senior knowledge lawyer at Hogan Lovells

Local authorities and developers often argue over the method used and whether affordable housing has been taken into account. A dispute of this nature ended up in the Court of Appeal recently.

The court was asked to decide whether a planning inspector’s approach to objectively assessed need (OAN) had been lawful. The claimants were Jelson Ltd, who had applied for permission to build 73 homes on undeveloped land outside a settlement boundary in Leicestershire. Hinckley and Bosworth Borough Council refused permission and Jelson appealed. One of the key issues at appeal was whether there was a five-year supply of housing land. The inspector found that there was and dismissed the appeal (DCS Number 200-004-987), finding that relevant policies for housing supply were not out of date. 

Jelson challenged the inspector’s decision in the High Court. It argued that the inspector had used the wrong approach to OAN and had failed to assess affordable housing need properly. Dismissing the challenge, Mr Justice Green was satisfied that the inspector had taken this into account. Jelson tried again in the Court of Appeal, but, last month, Lord Justice Lindblom rejected the claim, stressing that responsibility for assessing housing need lies with the decision-maker and that it is not the court’s role to review such decisions. 

National policy and guidance does not dictate exactly how a decision-maker is to identify a housing need figure, the court explained, noting that this is not an "exact science". It may be reasonable for more than one figure to be used and it may be sensible to adopt a range. The court was satisfied that the inspector had exercised her planning judgement lawfully and had considered affordable housing need in her assessment. 

This case makes it clear that assessment of housing need is for the decision-maker and that the scope for reasonable and lawful planning judgement is broad. It will be interesting to see what the revised National Planning Policy Framework will say about the standard method. While this will not be mandatory, any deviation from it will have to be fully justified. With this in mind, I wonder whether it will lead to an increase or reduction in court time on this issue. 

Jelson Ltd v Secretary of State for Communities and Local Government and Another; Date: 23 January 2018; Ref: [2018] EWCA Civ 24 

Kathryn Hampton is senior knowledge lawyer at Hogan Lovells

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