Legal viewpoint: Interpreting councils’ room for manoeuvre on five-year supply

Proposals for residential development outside established settlement limits have been at the heart of dozens of appeals and many a higher court judgment since the National Planning Policy Framework (NPPF) first saw the light of day in 2012. A recent Court of Appeal judgment on a case from North Yorkshire carries on this trend.

The judicial review challenge was to a council’s grant of planning permission for 21 houses and a village shop. Although there were a number of grounds, the claimants’ central points were that an officer had wrongly advised that the framework’s “tilted balance” was engaged, on the basis that the council’s housing land supply position was “marginal”, and that, in any event, the council had failed to take into account the effect of the 2016-based population projections, published a matter of days before the relevant committee meeting.

The claimants were unsuccessful at first instance but appealed to the Court of Appeal. Lord Justice Lewison had little difficulty in dismissing the “tilted balance” argument, reminding us that the existence or otherwise of a five-year housing land supply is a binary question: either there is a five-year supply or there is not, however “marginal” any excess or shortfall may be.

That was not the end of the matter, for it is well established that the planning balance can be tilted for reasons unconnected to housing land supply, such as where policies are “out of date”. This, the court held, is not a numbers game but depends on the application of planning judgement, an area into which the courts will rarely venture.

Considering the officer’s report as a whole, it was clear to the court that members had been advised that the tilted planning balance was triggered because officers adjudged settlement boundary policies to be out of date. The court resisted the temptation to interfere with the council’s assessment of the weight to be attached to out-of-date settlement boundary policies, weight being a matter for the local planning authority within the bounds of rationality.

Perhaps of greater significance was the court’s response to the second argument that the 2016 projections were a “mandatory consideration in the planning decision” - in other words, that the council could not lawfully determine its housing requirement without reference to the latest projections. Lord Justice Lewison rejected this line of argument, on three grounds.

First, the NPPF states quite clearly that the standard method for assessing housing requirements is not mandatory. Second, the standard method is intended to determine the minimum requirement, which may increase once different factors are taken into account. Third, in formulating its housing requirement, the council was entitled to follow a “justified alternative approach”, further supporting the conclusion that the standard method - or the ONS projections - is not mandatory.

A slight note of caution should be sounded here, given the timing of the officer’s report. The current policy position is that, for decision-taking, the standard method should be used where adopted housing requirements are more than five years old and have not been reviewed - albeit that a number of local authorities, notably Central Bedfordshire, have managed to argue successfully that a bespoke need figure is acceptable.

Looking further ahead, the case reminds us that the relationship of the courts and policy-makers is likely to come under the spotlight over the next few years. The present position, underlined by the court, is that the NPPF and Planning Practice Guidance are policy documents without statutory force. As such, it is currently possible to depart lawfully from their strict application.

In its recently published white paper, Planning for the Future, the government signalled its intention to set housing requirements, both “policy off’ and “policy on”, at a national level. Unless these centrally established targets are underpinned by a statutory obligation to adopt local plans to meet them, it will remain open for local planning authorities to take their own approach, provided they do so lawfully and rationally.

Case: R (Oxton Farm) v Harrogate Borough Council

Date: 25 June 2020

Ref: [2020] EWCA Civ 805

Jonathan Easton is a barrister at Kings Chambers.

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