Appeal court backs Harrogate Council's departure from standard housing need method in homes consent

The Court of Appeal has ruled that a Yorkshire council was justified in not using the government's standard method in assessing its housing need and dismissed an objector's challenge to the authority's consent for 21 new homes on a greenfield site.

The Royal Courts of Justice in London, home of the Court of Appeal.
The Royal Courts of Justice in London, home of the Court of Appeal.

Harrogate Borough Council granted outline planning permission for construction of 21 new homes and a village shop on land at Turnpike Lane, on the outskirts of the hamlet of Bickerton, in September 2018.

Objector and local business, Oxton Farm, sought judicial review of the decision but had its complaints rejected by the High Court in June 2019.

Before the Court of Appeal, however, Oxton Farm argued that the council's assessment of its deliverable housing land supply and how many homes that it would have to build annually was far too pessimistic.

Its argument was based on the use of household projections statistics that are published by the government's Office for National Statistics (ONS) and are used by councils when assessing their housing need levels for plan-making.

The National Planning Policy Framework (NPPF) states that ONS population projections must be taken into account when preparing development plans and that they are a material consideration in planning decisions.

Dismissing Oxton Farm's appeal, however, Lord Justice Lewison ruled that the ONS figures were "not a mandatory consideration" that had to be put in the planning balance. The statistics were not so fundamental to the council's decision as to render the grant of consent irrational.

In a housing land supply update published in July 2018, the council said that its supply stood at 5.02 years - very narrowly above the five-year target set by the NPPF - and that it would need to build 669 new homes in its district annually to continue meeting that target.

That assessment lay at the heart of the council's decision on 25 September 2018 to approve the housing scheme, just five days after the ONS published its 2016-based household projections.

Compared to the previous 2014-based dataset, the 2016-based household projections produced a lower level of housing need for many local authorities in northern regions when used in the government's standard method of assessing housing need.

A planning consultant, who addressed the council on behalf of a local resident, argued that the ONS figures indicated that only 383 - rather than 669 - new homes needed to be built in the district annually. This meant the council's housing land supply was more then seven years, comfortably above the five-year target.

The council based its decision on a planning officer's report, which was prepared the month before publication of the ONS projections.

The report stated that the council's housing land supply position was "marginal" and that, in order to keep meeting the five-year target, there would be a continuing need to release greenfield sites outside existing settlements for development.

Under the NPPF, councils without a five-year housing land supply face the presumption in favour of sustainable development, or tilted balance.

In addition, local planning policies concerning settlement boundaries stated that villages and hamlets with few facilities and services would not be required to accommodate new market housing apart from the suitable conversion of existing buildings.

Those policies, however, dated back to 2009 and the officer stated in her report that they were "out of date" and should be given only limited weight.

Ruling on Oxton Farm's appeal, Lord Justice Lewison said: "Whether the tilted balance is engaged because of a shortfall in the supply of deliverable sites for housing is a binary question, to be answered yes or no. Either there is a five-year supply of housing land, or there is not."

The officer had, however, made it clear in her report that Harrogate could, albeit narrowly, demonstrate a five-year supply and that the tilted balance was not automatically triggered on that basis.

The judge, who was sitting with Lord Justice Underhill and Lady Justice Carr, said that the officer's recommendation to the planning committee was rather based on her conclusion that the settlement boundary policies were out of date.

He added: "The reason why the committee's decision departed from the development plan, and in particular (the settlement boundary policies), was because they accepted the officer's advice that those policies were out of date."

Oxton Farm argued that the officer's statement that the housing land supply was "marginal" may have been correct when she made it, but that it had been "falsified by the ONS statistics published after the report was compiled".

The ONS figures, it was argued, indicated that there was a substantial surplus of deliverable housing sites in the district and therefore there was no need to grant permission on the bases of an insufficient land supply.

But Lord Justice Lewison said that the NPPF paragraph 73 permits an assessment of local housing need "either by the standard method or by a justified alternative approach", adding: "In my judgment, therefore, Harrogate was not required to use the standard method in calculating local housing need."

He went on to say: "The underlying premise of this submission is that objectively assessed housing need is only calculated correctly if the standard method is used. But for the reasons I have given, I do not consider that that is correct.

"Moreover, ... whichever method was used to calculate the five year supply of housing land, the conclusion would have been that Harrogate could demonstrate such a supply.

"For these reasons I do not accept that the ONS statistics were a mandatory consideration."

Oxton Farm v Harrogate Borough Council. Case Number: C1/2019/2124

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