St Albans City and District Council v (1) Hunston Properties Limited and (2) Secretary of State for Communities and Local Government [2013] EWCA Civ 1610

In the October edition of the Newsletter, RoseGrogan reported on the judgment of HHJ Pelling QC in the landmark case Hunston Properties Limited v. (1) Secretary of State for Communities and Local Government and (2) St Albans City and District Council [2013] EWHC 2678 (Admin). The Council’s appeal against that decision was heard by Maurice Kay and Ryder LJJ and Sir David Keene on 20 November 2013 and was successfully defeated by Hunston Properties Limited (“Hunston”) as we explain in this article. Hunston had applied for 116 dwellings on a Green Belt site and had argued that veryspecial circumstances justified the development because, among other things, the Local Plan was out-of-date and the Council had not identified a 5 year supply of deliverable housing to meet full, objectively assessed, housing needs. However, the

Inspector found that there was no shortfall in ,supply because she considered it necessary to identify a housing requirement which reflected the Green Belt constraints in the district generally – in this case, she settled on the housing requirement within the revoked East of England Plan.The Inspector’s decision was successfully challenged by Hunston before HHJ Pelling QC, but St Albans appealed.

The question before the Court of Appeal was whether the Inspector was entitled to adopt a constrained housing requirement in, assessing the housing supply situation in the absence of an up-to-date Local Plan, having regard to the first two bullets of paragraph 47 of the NPPF which provide as follows:

“47. To boost significantly the supply of housing, local planning authorities should:

  • use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
  • identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements …”  

The appellant Council contended that the Inspector was so entitled: while the first bullet referred to “the full objectively assessed needs” it also added the qualification “as far as is consistent with the policies set out inthis Framework.” That, it was submitted,meant that one had to take into account such policies as those on the protection of the Green Belt. 

On behalf of Hunston, we argued that the Council’s appeal was misconceived,confusing the NPPF’s guidance on “planmaking” with that on “decision-taking”, and illegitimately sought to require an Inspector at a local planning inquiry to undertake a quasiplan-making assessment in circumstances where (as here) there was no up-to-date Development Plan. Such an approach was contrary to paragraph 47 of the NPPF, the first bullet of which applied to plan-making only, which was subject to the statutory protections of the Examination in Public and compliance with the requirement of soundness.

When giving permission to appeal, Lord Justice Sullivan said that there was a compelling reason for the appeal to be heard so that there could be a “definitive answer to the proper interpretation of paragraph

47” of the Framework, and in particular the interrelationship between the first and second bullet points in that paragraph.The definitive answer given by Sir David Keene to that
question agreed with the analysis given on behalf of Hunston, as follows:

“…I accept Mr Stinchcombe QC’s submissions for Hunston that it is not for an inspector on a Section 78 appeal to seek to carry out some sort of local plan process as part of determining the appeal, so as to arrive at a constrained housing requirement figure. An inspectorin that situation is not in a position to carry out such an exercise in a proper fashion, since it is impossible for any rounded assessment similar to the local plan process to be done. That process is an elaborate one involving many parties who are not present at or involved in the Section 78 appeal. I appreciate that the inspector here was indeed using the figure from the revoked East of England Plan merely as a proxy, but the government has mexpressly moved away from a “top-down” approach of the kind which led to the figure of 360 housing units required per annum. I have some sympathy for the inspector, who was seeking to interpret policies which  were at best ambiguous when dealing with the situation which existed here, but it seems to me to have been mistaken to use a figure for housing requirements below the full objectively assessed needs figure until such time as the Local Plan process came up with a constrained figure.”

That is not to say that constraints such as the Green Belt fall entirely out of the picture in such circumstances, even if irrelevant to the calculation of housing needs against which the adequacy of supply must be determined. Rather, they will fall to be taken into account, following the quashing of the Inspector’s decision letter, at a fresh Planning Inquiry, and when considering whether very special  circumstances do outweigh the harm to the Green Belt and any other harm.