Chain House Lane, Whitestake, Preston (“The Site”) (“The Decision”)

IN THE HIGH COURT OF JUSTICE Claim Number [ ]

QUEEN’S BENCH DIVISION PLANNING COURT

B E T W E E N :

WAINHOMES (NORTH WEST) LIMITED Claimant

- and –

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT

Defendant -and-

SOUTH RIBBLE BOROUGH COUNCIL

Second Defendant

CLAIM BUNDLE INDEX

Document Page(s)

1. PLEADINGS AND EVIDENCE

Claim Form 3 – 8

Statement of Facts and Grounds 9 – 21

Witness Statement of Stephen Harris with Exhibits 22 – 25

Exhibit “SH1” Appeal Decision Notice 24 June 2021 26 – 39

Exhibit “SH2” Appeal Decision Notice 13 December 2019 40 – 59

Exhibit “SH3” Wainhomes (North-West) Limited v 60 – 85 Secretary of State for Housing Communities and Local Government, South Ribble Borough Council [2020] EWHC 2294 (Admin)

Exhibit “SH4” Statement of Common Ground Extracts 86 – 105

i 1 Exhibit “SH5” Housing Supply Statement of Common 106 – 113 Ground Extracts

Exhibit “SH6” Central Lancashire Core Strategy 2012 114 – 115 Extracts

Exhibit “SH7” South Ribble Local Plan Extracts 116 – 124

Exhibit “SH8” National Planning Policy Framework 2019 125 - 131 Paragraphs 33 and 59 – 76

Exhibit “SH9” National Planning Policy Guidance 132 – 135 Paragraphs 61-062 and 68-005

2. CASE LAW

St. Modwen Developments Ltd v Secretary of State for 136 – 157 Communities and Local Government and another [2017] EWCA Civ 1643

Carpets of Worth Ltd. v Wyre Forest District Council (1991) 158 – 171 62 P. & C.R. 334

ii 2 3 4 5 6 7 8 IN THE HIGH COURT OF JUSTICE CLAIM No. CO/ QUEEN’S BENCH DIVISION PLANNING COURT

IN THE MATTER OF AN APPLICATION FOR PERMISSION TO BRING STATUTORY REVIEW PROCEEDINGS UNDER SECTION 288 OF THE TOWN AND COUNTRY PLANNING ACT 1990

BETWEEN:

WAINHOMES (NORTH WEST) LIMITED Claimant

-and-

SECRETARY OF STATE FOR HOUSING, COMMUNITIES AND LOCAL GOVERNMENT

First Defendant

-and-

SOUTH RIBBLE BOROUGH COUNCIL Second Defendant

STATEMENT OF FACTS AND GROUNDS

PRELIMINARY

References in this document to documents within the Claim Bundle are made in the format [CB/ Tab / Page Number]

Essential pre-reading: Statement of Facts and Grounds [CB/1/9-21], Decision Letter of Inspector Dawe (“the DL”) [CB/1/26-39], Witness Statement of Stephen Harris [CB/1/22-25] (Time estimate: 1 hour 30)

I. INTRODUCTION

1. The Claimant seeks permission to apply for statutory review of a decision of the Defendant’s appointed Inspector dated 24 June 2021 to dismiss the Claimant’s appeal and refuse to grant planning permission for development described as “ outline planning permission for up to 100

9 dwellings with access and associated works” (“the Development”) on a site known as Land to the South of Chain House Lane, Whitestake, Preston (“the Site”) (“the Decision”). The Site falls within the Second Defendant’s (“the Council”) administrative area of South Ribble.

2. In summary, the Inspector took a flawed approach to the assessment of the appeal and failed to properly interpret Paragraph 73 and Footnote 37 of the National Planning Policy Framework 2019 (“NPPF”). The Inspector’s flawed approach to this policy led him to take into account an immaterial consideration. Further or alternatively, the Inspector failed to give adequate intelligible reasons for his decision. The Decision was therefore not within the powers of the Town and Country Planning Act 1990 (“the TCPA 1990”) and/or the relevant requirements have not been met, and the decision ought to be quashed and remitted back to the First Defendant for his reconsideration.

II FACTUAL BACKGROUND

Policy and Guidance

3. Paragraphs 33 and 60 of the NPPF state as follows:

“[33] Policies in local plans and spatial development strategies should be reviewed to assess whether they need updating at least once every five years, and should then be updated as necessary18. Reviews should be completed no later than five years from the adoption date of a plan, and should take into account changing circumstances affecting the area, or any relevant changes in national policy. Relevant strategic policies will need updating at least once every five years if their applicable local housing need figure has changed significantly; and they are likely to require earlier review if local housing need is expected to change significantly in the near future.” [CB/1/126]

“[60] To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.” [CB/1/127]

4. Paragraph 73 of the NPPF provides as follows, in so far as is relevant:

10 “.... Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies [36], or against their local housing need [“LHN”] where the strategic policies are more than five years old [37]…” [CB/1/130-131]

5. Footnote 37 then provides that:

“Unless these strategic policies have been reviewed and found not to require updating. Where local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method [“SM”] set out in national planning guidance.” [CB/1/130]

6. Guidance is also provided in the Planning Practice Guidance (“PPG”). In particular, PPG paragraph 68-005 advises:

“What housing requirement figure should authorities use when calculating their 5 year housing land supply? Housing requirement figures identified in adopted strategic housing policies should be used for calculating the 5 year housing land supply figure where:

 the plan was adopted in the last 5 years, or  the strategic housing policies have been reviewed within the last 5 years and found not to need updating.

In other circumstances the 5 year housing land supply will be measured against the area’s local housing need calculated using the standard method.” [CB/1/135]

7. The Inspector cites other PPG paragraphs including 61-062 (referred to within the DL as “paragraph 062”). This paragraph applies under the heading “Plan Making” and states:

“How often should a plan or policies be reviewed? To be effective plans need to be kept up-to-date. The National Planning Policy Framework states policies in local plans and spatial development strategies, should be reviewed to assess whether they need updating at least once every 5 years, and should then be updated as necessary.

11 found sound conditional upon a plan update in whole or in part within 5 years of the date of adoption. Where a review was undertaken prior to publication of the Framework (27 July 2018) but within the last 5 years, then that plan will continue to constitute the up-to-date plan policies unless there have been significant changes as outlined below.

There will be occasions where there are significant changes in circumstances which may mean it is necessary to review the relevant strategic policies earlier than the statutory minimum of 5 years, for example, where new cross-boundary matters arise. Local housing need will be considered to have changed significantly where a plan has been adopted prior to the standard method being implemented, on the basis of a number that is significantly below the number generated using the standard method, or has been subject to a cap where the plan has been adopted using the standard method. This is to ensure that all housing need is planned for a [sic] quickly as reasonably possible.” [CB/1/133]

8. The relevant strategic policy providing the housing requirement within the adopted development plan is Policy 4 of the Core Strategy for Central Lancashire [CB/1/115]. The Core Strategy was prepared by the Second Defendant together with Preston City Council and Chorley Council, who are all part of a single housing marking area identified as Central Lancashire, and was adopted in 2012. It was common ground between the Claimant and Second Defendant at the inquiry that a review of the Core Strategy was conducted in 2017 where Policy 4 was found not to require updating.

9. It was also common ground at the inquiry that the Council could not demonstrate the required five year supply of housing land based upon the housing requirement in Policy 4 of the Core Strategy. However, the Council could demonstrate a five year supply as against the local housing need derived using the standard method referred to within Footnote 37 [CB/1/111]

The 2019 Decision 10. On 4 December 2018 the Claimant applied to the Second Defendant for outline planning permission for the Development. The Council refused to grant planning permission and the Claimant appealed under section 78 of TCPA 1990 to the First Defendant. Following a public inquiry in November 2019 the First Defendant’s Inspector determined to dismiss the appeal (“the 2019 Decision”) [CB/1/40-59]. The 2019 Decision was the subject of an application under s.288 of the TCPA to this Court. On 21 August 2020 Mr Justice Dove allowed the appeal and quashed the 2019 Decision on what was Ground 5; that the Inspector’s reasons for finding Policy G3 wan not out of date were not legally adequate. Dove J also concluded that the Inspector’s conclusion that the 2017 review was not a review of Policy 4 for the purposes of

12 Footnote 37 was based upon flawed reasoning (Ground 1) [CB/1/60-85] (That Policy 4 had been subject to a review was a matter of agreement as part of the Decision).

11. Ground 3 of the challenge before Dove J concerned the 2019 Inspector’s decision that there was a “significant change” since the 2017 review for the purposes of paragraph 62 of the PPG, the Inspector misinterpreted paragraph 62 of the PPG in concluding that it covered a situation where an existing plan figure was significantly above (not below) the Local Housing Need figure generated using the standard method. Ground 3 did not succeed before Dove J; he concluded that it was open to the Inspector as a matter of planning judgement to conclude that a significant difference between the local plan figure and the LHN figure based on the standard method could render the development plan figure in Policy 4 out of date. It should be noted that the Claimant, as part of the 2019 Decision and before Dove J conceded that Ground 3 needed to succeed in order to succeed on Ground 1. Dove J proceeded on that basis without concluding as to whether such a concession was necessary. Accordingly, the 2019 Decision was quashed on Ground 5 only.

The Decision

12. Inspector Dawe held an inquiry into the Claimant’s appeal which sat between 16-19 March 2021. His decision letter (DL) [CB/1/26-39] was issued on 24 June 2021. He identified at DL8 that one of the main issues in the appeal was whether the Council could demonstrate a five year supply of deliverable housing sites.

13. Inspector Dawe’s reasoning on this issue was as follows:

“[10]… Policy 4 of the Core Strategy is also directly relevant in relation to the housing requirement and calculation of the five year housing land supply.

… [12] … The strategic policies within the Core Strategy are clearly more than five years old in which case footnote 37 to paragraph 73 gives the proviso ‘unless these strategic policies have been reviewed and found not to require updating’. The footnote also states that where local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance. … [13]… It is now common ground between the Council and Appellant that policy 4 of the Core Strategy was subject to review in 2017 when it was found not to require updating. I have no substantive basis to consider differently.

13 [14] However, importantly, the previous decision was not quashed in relation to ground 1. This was due to the points raised under ground 3 representing a fallback and that the HC Judgement found that the conclusion the Inspector reached that there had been a significant change pursuant to the Planning Practice Guidance (PPG)1 arising from the introduction of the standard method (the SM) in the 2018 Framework, was a planning judgement reasonably open to her based upon a correct interpretation of the PPG, albeit that other conclusions might reasonably be reached by other Inspectors…

[15] I acknowledge the concern raised by the Appellant that the Framework, and paragraph 73 in particular, could not have been written with the expectation of the use of the SM rendering reviewed policies out of date. However, I do not consider that the introduction of the SM in itself represents a significant change in circumstances. Rather, the question is whether the outcome of applying the SM represents a significant change, if it is appropriate to apply the SM in the first place.

…

[18] The use of the SM in producing the emerging CLLP would be consistent with paragraph 60 of the National Planning Policy Framework (the Framework) which states, amongst other things that to determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the SM in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. I therefore also consider that the direction of travel is towards use of the SM. As such, in this respect, it is reasonable to consider the implications of the Framework’s introduction of the SM for the housing requirement in the context of this appeal.

[19] … However, that does not mean that the application of LHN derived from using the SM, without any subsequent re-distribution, cannot be considered in decision- making. This is apparent in those circumstances whereby the SM would be required to be used under the terms of paragraph 73 and footnote 37 of the Framework to calculate the housing requirement if adopted strategic policies are more than five years old and require updating, whether that follows a review or if no review has been undertaken.

…

[21] Paragraph 062 of the PPG states, amongst other things, that where a review was undertaken prior to publication of the Framework (27 July 2018) but within the last 5 years, then that plan will continue to constitute the up-to-date plan policies unless there have been significant changes in circumstances as outlined later in paragraph 062. In this case MOU1 pre-dated the 2018 Framework and was clearly within the last 5 years.

[22] The PPG states that local housing need will be considered to have changed significantly where a plan has been adopted prior to the standard method being implemented, on the basis of a number that is significantly below that generated using the SM. However, it does not state that to be the only scenario. The final sentence of paragraph 062 also states that this is to ensure that all housing need is planned for as quickly as reasonably possible.

14 [23] Reliance on LHN calculated using the SM, rather than on a review similar to that culminating in MOU1, having regard to the HC Judgement, is therefore consistent with the PPG and paragraph 33 of the Framework, where a redistribution of housing requirement is not being considered. As such, that reliance would be a reasonable approach, regardless of MOU1 having comprised a review and whether or not the Council’s Annual Housing Requirement report dated 8 March 2021 can be considered to be a policy review for the purposes of paragraph 73 and footnote 37 of the Framework.

…

[29] … the introduction of the SM result[s] in a significant change in the Council’s housing requirement figure that renders policy 4(a) out of date. …

[30] For the above reasons, I conclude that for the purposes of this appeal, it is appropriate to calculate the housing requirement against LHN using the SM due to the significant difference between the LHN figure and that of policy 4(a) amounting to a significant change in circumstances which renders policy 4(a) out of date.”

14. Inspector Dawe therefore went on to apply the LHN derived from the SM, resulting in the clear view (as agreed between the parties) that the Council could demonstrate in excess of five years’ supply of housing land. The Inspector applied the tilted balance to the determination of the appeal. He also made it plain that the presence of a five-year supply of housing land materially affected his overall planning balance. For example, at DL51 he stated “importantly, I have found that the Council can demonstrate at least 10.1 years’ worth of supply of deliverable housing sites against its requirement to provide a minimum of 5 years’ supply” and at DL52 he stated that “There is therefore currently no substantive basis to consider that the site should be disregarded as safeguarded land and there is no housing need requirement to justify its development now. As such, whilst full weight cannot be afforded to policy G3 [the policy safeguarding the Site from development for the plan period] for the reasons relating to it being out of date, it should still be afforded significant weight.” And at DL53, the Inspector noted that the presence of a significant supply of housing land “this significantly reduces the weight attached to [the] benefits [of the Development]” . Accordingly, the presence of a five-year supply of housing land was a factor materially affecting the decision as a whole and had the Inspector reached a different view on this issue, the Inspector may well have reached a different overall planning balance on the appeal as a whole.

III LEGAL FRAMEWORK

15. The relevant legal principles are not novel or controversial.

16. The decision to grant planning permission is governed by section 70 of the TCPA 1990 and s.38(6) of the Planning and Compulsory Purchase Act 2004; the decision should be made accordance with the development plan unless material considerations indicate otherwise.

17. National Government policy, contained within the NPPF is one such material consideration. In St Modwen Developments Limited v Secretary of State for Communities and Local Government [2018] PTSR 746 [CB/2/136-157] Lord Justice Lindblom set out a number of principles which are to be applied in determining challenges brought under s.288 of the TCPA 1990 as follows:

“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26 , at p.28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953 , at p.1964B-G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759 , at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74 , at paragraph 6).

(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision- maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an

16 immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983 , at paragraphs 17 to 22).

(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, in South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80 , at p.83E-H).

(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J in Sea & Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB) , at paragraph 58).

(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. in Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6 , at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137 , at p.145).”

IV GROUNDS OF CHALLENGE

Ground 1: Misinterpretation of NPPF 73 and Footnote 37

18. The Inspector took a flawed approach to NPPF 73 and Footnote 37 which led him to conclude, erroneously, that the Council could demonstrate a five year supply of housing land. This in turn, fed into the Inspector’s overall planning balance and infected the Decision as a whole.

19. NPPF 73 and Footnote 37 together provide that:

1) Local planning authorities are required to maintain a five year supply of housing sites; 2) The figure should be calculated using the requirement set out within the adopted policy; 3) However, LHN is to be used where those policies are more than five years old (no other gateway to using LHN is provided); 4) Unless , a review has occurred and found that the policies, even though they are more than five years old, do not need to be updated.

17 20. Accordingly, the result is that in all instances where a review has found that strategic polices over five years old do not need updating, those policies continue to form the basis for the requirement figure. LHN does not come into play in this scenario.

21. Those are exactly the circumstances of this appeal and NPPF 73 and Footnote 37 permit of no other conclusion than that the housing requirement in the relevant strategic policy (Core Strategy Policy 4) should form the basis of the five year supply calculation. The Inspector should have stopped at this point and concluded that the Council did not have a five year supply.

22. However, he did not, instead the Inspector strayed into error by going on to consider guidance in the PPG which was wholly irrelevant to this exercise and which formed the basis for his conclusion that Policy 4 was out of date and therefore that the LHN should be used as the five year supply requirement for the purposes of NPPF 73. At DL30 the Inspector states that the SM figure should be used “due to the significant difference between the LHN figure and that of policy 4(a) amounting to a significant change in circumstances which renders policy 4(a) out of date.”

23. In reaching this conclusion, the Inspector ‘read in’ to NPPF 73 an additional circumstance in which LHN should form the basis of the five year supply calculation, namely when the adopted policy can be said to be out of date. That is demonstrably not what NPPF 73 states, which provides very clearly for the circumstances in which LHN should be used and the facts of this appeal fall squarely outside those circumstances.

24. It is clear from the DL that the Inspector elides the two concepts of (1) what the housing requirement for the purposes of the five year supply calculation within NPPF 73 should be and (2) whether Policy 4 was out of date. Whether Policy 4 is out of date or not due to changes in circumstances is a different decision and does not undermine the conclusion for the purposes of NPPF 73 that Policy 4 provides the figure from which to calculate the Council’s five-year supply.

25. The Inspector’s interpretation of Footnote 37 renders the provisions relating to review meaningless. The Inspector has approached NPPF 73 and Footnote 37 as if the policy allowed for LHN to be used where the adopted policy is out of date, regardless of whether the Council had undertaken a review of its policies or not. However, the authors of the NPPF allowed authorities to continue using their own requirement figures in a manner akin to a transitional provision, where a review had taken place. The benefit of undertaking such a review would be entirely removed on the Inspector’s approach. This is contrary to the clear wording and intent of the NPPF.

26. As such, the Inspector misinterpreted NPPF 73 and Footnote 7 and the Decision is flawed as a result.

Ground 2: Failure to give adequate reasons for the Decision

27. Further and alternatively, the Inspector’s reasoning is opaque and if the Inspector wished to use the concept of ‘out of date’ to move away from the clear finding that NPPF 73 dictates that the Core Strategy figure be used, he was required to give very clear reasons for this. The DL does not engage with this point and the reader is left with the distinct impression that the Inspector misinterpreted the NPPF.

28. The Inspector’s reasons are far from clear. At DL15 he states that “the question is whether the outcome of applying the SM represents a significant change, if it is appropriate to apply the SM in the first place ” (emphasis added). It is important to note that on this reasoning it is necessary first to identify that it is appropriate to apply the SM before one could consider whether it represents a significant change. A proper interpretation and application of NPPF 73 and Footnote 37 do not provide for the SM to be used in the circumstances before the Inspector. Accordingly, on the Inspector’s own reasoning, he ought not to have gone on to look at the outcome of applying the SM, as it was not appropriate to apply the SM in the first place. Furthermore, once it is accepted that the introduction of the SM cannot of itself be a reason for use of the SM, it is unclear how consideration of the outcome of using it can be relevant to the Decision.

Ground 3: NPPF 60 and PPG paragraph 062 were immaterial considerations taken into account in the Decision

29. The Inspector erred in taking into account NPPF 60 and PPG paragraph 61-062 and using this policy and guidance as a reason to apply the SM to calculate the relevant housing requirement figure for the purposes of NPPF 73. This section of the PPG sits under the heading “Plan- Making” and its guidance expressly applies to local planning authorities making and reviewing plans, its primary aim is not to direct decision-taking. NPPF 60 is also aimed at assisting plan- making authorities in writing their strategic policies.

19 30. The Inspector used both plan-making policies and guidance as a basis to assert in DL18 that “the direction of travel is towards use of the SM” without addressing their inconsistency with the directly relevant policy of NPPF 73 and directly relevant guidance in PPG paragraph 68- 005. Whilst there may be a “direction of travel” towards the SM in plan-making, only Footnote 37 provides a basis for using the SM in decision-taking.

31. Accordingly, the Inspector relied upon two immaterial considerations in reaching his view that the LHN figure should be used; NPPF 60 and PPG paragraph 62 and his Decision is flawed for this reason.

Conclusions on Grounds of Challenge

32. The Decision is legally flawed due to the Inspector’s incorrect interpretation of NPPF 73. NPPF 73 sets out a closed list of circumstances in which it is permissible to use the LHN figure as the housing requirement when determining a s.78 appeal. The NPPF could very easily have said that adopted policy is to be used unless it is found to be out of date. However, it does not say that, instead, the authors have taken pains to set out the scenarios in which LHN should be used and where the adopted policy figure should continue to apply. On the Inspector’s approach, this clear wording is of no effect.

33. Alternatively, if the Inspector wished to depart from the clear wording of NPPF 73, he was required to acknowledge that he was doing so and provide clear reasons as to why he was choosing to depart (Carpets of Worth Ltd v Wyre Forest District Council [1991] 2 PLR 84) [CB/2/158-171 at 158]. Instead, the Inspector provided unclear reasoning based upon guidance which was expressly relevant to plan-making rather than decision-taking and fell into a clear error in his approach to NPPF 73 and Footnote 37.

34. For the avoidance of doubt, there is nothing within the judgment of Dove J which would preclude the success of this Claim. It is accepted that whether a policy is or is not out of date is a matter of planning judgement for the decision-maker. However, it was not argued before Dove J and his judgment does not determine the issue as to whether the concept of “out of date” is a different exercise to that required by NPPF 73.

20 V CONCLUSIONS

35. The Claimant respectfully requests that the Court grant it permission to bring this claim on all three pleaded grounds under s.288 of the 1990 Act.

36. The Claimant seeks an order:

1) Granting permission to bring the proceedings; 2) Quashing the First Defendant’s decision of 24 June 2021; and 3) Ordering the First Defendant to pay the Claimant’s reasonable costs of bringing this claim.

VINCENT FRASER QC STEPHANIE HALL

Kings Chambers 36 Young Street, Manchester M3 3FT

28 July 2021

21 22 23 24 25 26

Appeal Decision Inquiry Held on 16 - 19 March 2021 Site visit made on 25 March 2021

by Andrew Dawe BSc(Hons) MSc MPhil MRTPI

an Inspector appointed by the Secretary of State

Decision date: 24th June 2021

Appeal Ref: APP/F2360/W/19/3234070 Land to the South of Chain House Lane, Whitestake, Preston • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. • The appeal is made by Wainhomes (North West) Ltd against the decision of South Ribble Borough Council. • The application Ref 07/2018/9316/OUT, dated 4 December 2018, was refused by notice dated 27 June 2019. • The development proposed is Outline Planning Permission for up to 100 dwellings with access and associated works. • This decision supersedes that issued on 13 December 2019. That decision on the appeal was quashed by order of the High Court.

Decision

1. The appeal is dismissed.

Application for costs

2. At the Inquiry an application for costs was made by Wainhomes (North West) Ltd against South Ribble Borough Council. This application is the subject of a separate Decision.

Procedural Matters

3. For clarity, when considering the previous decision relating to the fifth bullet point of the above header, I shall refer to it as the quashed decision, and to the High Court order as the HC Judgement.

4. The site address in the above header is taken from the original planning application form. This provides sufficient information to describe the location albeit that reference to it being land to the rear of Oakdene in the Council’s decision and on the Appeal form provides increased clarity.

5. The appeal relates to an outline planning application with all matters reserved for future consideration other than access. The matters of appearance, landscaping, layout and scale would therefore be for future consideration were the appeal allowed. However, the Appellant has submitted an illustrative masterplan, to show how the site could be developed. That plan is the amended version submitted for and considered at the previous Inquiry (Ref. 1638WHD/CHL/IM01 Revision B) which was accepted in that case by my colleague, along with an amended access plan (Ref. SCP 18355/FO2 Revision

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27 Appeal Decision APP/F2360/W/19/3234070

B), relating to a minor alteration to the access to avoid a tree on the neighbour’s boundary. I have no basis to consider differently to my colleague that the amended plans do not substantively alter the proposals, and would not prejudice the interests of interested parties. I have therefore also accepted those plans and determined the appeal on that basis.

6. Again, as referred to by my colleague in the quashed decision, the Council has withdrawn its third reason for refusal relating to air quality following the submission of an Air Quality Assessment. There remain no differences between the Council and Appellant on this matter which I have therefore not dealt with as a main issue, albeit acknowledging that it remains a point of concern for a number of local residents.

7. Among other appeal decisions submitted and referred to in relation to this appeal, one relates to Land at Cardwell Farm, Garston Road, Barton, Preston, Ref APP/N2345/W/20/3258889 (the Cardwell Farm decision). That appeal was allowed and the decision has been challenged by Preston City Council. However, that does not change the evidence before me as the decision remains in place unless it is quashed by order of the High Court. Notwithstanding that and other decisions referred to, whilst taking them into account, I have considered this appeal on its own merits based on all of the evidence before me.

Main Issues

8. The main issues are:

i) the South Ribble Borough Council housing requirement and whether the Council can demonstrate a five year supply of deliverable housing sites; and

ii) whether the proposed development would prejudice the Council’s ability to manage the comprehensive development of the wider area of safeguarded land within which the appeal site is located, with particular regard to policy G3 of the South Ribble Local Plan 2015 (the Local Plan).

Reasons

9. Section 70(2) of the Town and Country Planning Act 1990 requires regard to be had to, amongst other things, the provisions of the development plan, so far as material to the application, and to any other material considerations. Section 38(6) of the Planning and Compulsory Purchase Act 2004 states that if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. The National Planning Policy Framework (the Framework) is such a material consideration.

10. The development plan for the area comprises the Central Lancashire Core Strategy (Core Strategy), adopted in July 2012, and the Local Plan adopted in July 2015. The appeal site forms part of a larger area of safeguarded land referred to in policy G3 of the Local Plan as S3: South of Coote Lane, Chain House Lane, Farington and as identified on the adopted Policies Map. Policy G3 is the only policy cited in the two remaining reasons for refusal relating to the Council’s decision. Policy 4 of the Core Strategy is also directly relevant in

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28 Appeal Decision APP/F2360/W/19/3234070

relation to the housing requirement and calculation of the five year housing land supply.

Housing requirement

11. Policy 4 of the Core Strategy sets out the housing requirement for the three Central Lancashire authorities; Preston, South Ribble and Chorley, which form one Housing Market Area (HMA). A figure of 417 dwellings per annum (pa) is specified for South Ribble at part (a) of the Policy, and parts (b) to (d) relate to the review of housing delivery performance, and ensuring that a five year supply and sufficient housing land is identified by site allocations.

12. Paragraph 73 of the Framework requires local planning authorities to identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where those policies are more than five years old. The strategic policies within the Core Strategy are clearly more than five years old in which case footnote 37 to paragraph 73 gives the proviso ‘unless these strategic policies have been reviewed and found not to require updating’. The footnote also states that where local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance.

13. The three Central Lancashire authorities entered into a Joint Memorandum of Understanding and Statement of Co-operation relating to the provision of Housing Land in September 2017 (MOU1). MOU1 was informed by a Central Lancashire Strategic Housing Market Assessment dated September 2017 (SHMA). It was agreed in MOU1 that the housing requirements set out in policy 4 of the Core Strategy should continue to apply until the adoption of a replacement local plan. This matter related to ground 1 of the HC Judgement. In this respect, Mr Justice Dove concluded that the Inspector’s reasons for finding that MOU1 and the SHMA process leading up to it did not properly constitute a footnote 37 review are not legally adequate, and that her conclusions are affected by illegality in the form of an error of fact. It is now common ground between the Council and Appellant that policy 4 of the Core Strategy was subject to review in 2017 when it was found not to require updating. I have no substantive basis to consider differently.

14. However, importantly, the previous decision was not quashed in relation to ground 1. This was due to the points raised under ground 3 representing a fallback and that the HC Judgement found that the conclusion the Inspector reached that there had been a significant change pursuant to the Planning Practice Guidance (PPG)1 arising from the introduction of the standard method (the SM) in the 2018 Framework, was a planning judgement reasonably open to her based upon a correct interpretation of the PPG, albeit that other conclusions might reasonably be reached by other Inspectors. In coming to that finding, Mr Justice Dove said that “the language of the PPG and its proper interpretation did not constrain the Inspector and preclude her from reaching the conclusion that she did, namely that the significant difference between the housing requirement in Core Strategy policy 4(a) and that generated by the standard method was capable of amounting to a significant change rendering Core Strategy policy 4(a) out of date”.

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15. I acknowledge the concern raised by the Appellant that the Framework, and paragraph 73 in particular, could not have been written with the expectation of the use of the SM rendering reviewed policies out of date. However, I do not consider that the introduction of the SM in itself represents a significant change in circumstances. Rather, the question is whether the outcome of applying the SM represents a significant change, if it is appropriate to apply the SM in the first place.

16. In paragraph 34 of the quashed decision, it refers to any effects of redistribution of housing and how the use of the SM will affect the other two Central Lancashire authorities, as being a matter for their own decision making and for the emerging Central Lancashire Local Plan (CLLP) in carrying out a full review of housing policies. I agree that to be the case.

17. Furthermore, in paragraph 36 of the quashed decision, it states that it is clear to the Inspector that the direction of travel by all three authorities is towards the SM and a re-distribution of the housing requirement based on a range of factors including population, workforce and jobs distribution and constraints (including Green Belt). This is apparent from a combination of the work relating to a second Memorandum of Understanding (MOU2), entered into by the three HMA authorities in April 2020, albeit no longer in place given the withdrawal of one of the signatories; the March 2020 Central Lancashire Housing Study which was taken into account in MOU2, even if consideration was not given to whether or not the housing requirement figure in Core Strategy policy 4 was up to date or there were grounds for concluding that there had been a significant change; the Issues and Options Consultation document, November 2019, relating to the production of the new CLLP; and the Council’s Annual Housing Requirement report dated 8 March 2021.

18. The use of the SM in producing the emerging CLLP would be consistent with paragraph 60 of the National Planning Policy Framework (the Framework) which states, amongst other things that to determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the SM in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. I therefore also consider that the direction of travel is towards use of the SM. As such, in this respect, it is reasonable to consider the implications of the Framework’s introduction of the SM for the housing requirement in the context of this appeal.

19. I acknowledge, and agree with my colleagues in their respective appeal decisions relating to housing schemes at Land at Cardwell Farm referred to above and Pear Tree Lane, Euxton, Chorley2, that any re-distribution of housing requirement amongst the Central Lancashire Authorities should not be conducted through decision making outside of the development plan making process. However, that does not mean that the application of LHN derived from using the SM, without any subsequent re-distribution, cannot be considered in decision-making. This is apparent in those circumstances whereby the SM would be required to be used under the terms of paragraph 73 and footnote 37 of the Framework to calculate the housing requirement if adopted strategic

2 Appeal decision Ref: APP/D2320/W/20/3247136 dated 11 August 2020 https://www.gov.uk/planning-inspectorate 4

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policies are more than five years old and require updating, whether that follows a review or if no review has been undertaken.

20. In the case of Central Lancashire, notwithstanding the work conducted to inform the review of the Core Strategy and the MOU2 figures, the emerging CLLP remains at a relatively early stage in the process towards adoption. There are therefore no new housing requirement figures that are adopted or close to adoption through a new development plan with no associated agreement as to any re-distribution of housing need. I therefore have no substantive basis to consider it inappropriate to take into consideration that change in the Council’s housing requirement figure resulting from the application of the SM alone without any further re-distribution.

21. Paragraph 062 of the PPG states, amongst other things, that where a review was undertaken prior to publication of the Framework (27 July 2018) but within the last 5 years, then that plan will continue to constitute the up-to-date plan policies unless there have been significant changes in circumstances as outlined later in paragraph 062. In this case MOU1 pre-dated the 2018 Framework and was clearly within the last 5 years.

22. The PPG states that local housing need will be considered to have changed significantly where a plan has been adopted prior to the standard method being implemented, on the basis of a number that is significantly below that generated using the SM. However, it does not state that to be the only scenario. The final sentence of paragraph 062 also states that this is to ensure that all housing need is planned for as quickly as reasonably possible.

23. Reliance on LHN calculated using the SM, rather than on a review similar to that culminating in MOU1, having regard to the HC Judgement, is therefore consistent with the PPG and paragraph 33 of the Framework, where a re- distribution of housing requirement is not being considered. As such, that reliance would be a reasonable approach, regardless of MOU1 having comprised a review and whether or not the Council’s Annual Housing Requirement report dated 8 March 2021 can be considered to be a policy review for the purposes of paragraph 73 and footnote 37 of the Framework.

24. Fundamentally, with the application of the SM in this case, the housing requirement figure would be significantly lower, 191 dwellings for South Ribble as opposed to 417 dwellings in policy 4(a) of the Core Strategy. Paragraph 33 of the Framework, regardless of it not directly referencing the calculation of housing land supply in respect of paragraph 73 of the Framework, makes it clear that, amongst other things, relevant strategic policies will need updating at least once every five years if their applicable local housing need figure has changed significantly; and they are likely to require earlier review if local housing need is expected to change significantly in the near future. It does not define what significant is nor stipulate that this relates solely to where the figure increases.

25. Although little weight should be afforded to the emerging CLLP due the relatively early stage it is at towards adoption, the associated Issues and Options Consultation document nevertheless states that ‘it is likely that the number of homes we must deliver for this plan period of 2021-2036 will be different to our existing policy’. That was in the context of having applied the SM and calculated the minimum number of homes required per year at the time of producing that document as being 1,033 houses across Central

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Lancashire and 213 for South Ribble; albeit that it also states that the three Councils are still looking into the number of homes needed and how these will be spread across the three authorities.

26. Notwithstanding the work carried out surrounding MOU2, I also have no substantive basis, given that relatively early stage towards adoption of the emerging CLLP, to indicate whether or not any re-distributed figures would still amount to a significant difference to that in the Core Strategy for South Ribble. It might be the case that the actual LHN for South Ribble in the emerging CLLP is greater than the 191 dwellings. However, that is a matter for that plan- making process, as is consideration of any other factors such those surrounding the Preston, South Ribble and Lancashire City Deal, and does not diminish the situation whereby the LHN figure based on the SM represents a significant change in circumstances at the current time.

27. I acknowledge that such a significant reduction needs to be considered in the context of the Government’s objective, set out in the Framework, of significantly boosting the supply of homes. It should also be considered in the context of the clear need for affordable housing in the Borough. Furthermore, I have taken account of the other factors set out by my colleague in relation to the Cardwell Farm decision, those relating to the continued application of Core Strategy housing requirements at the time of MOU1 remaining relevant today. He highlighted that MOU1 noted that continuing to apply the Core Strategy housing requirement would, amongst other things, reflect the spatial pattern of development set out in Core Strategy policy 1. However, that is not in the context of applying the SM and does not diminish the circumstances whereby the introduction of the SM into the Framework since MOU1, designed to achieve the Government’s objective of significantly boosting the supply of homes, gives rise to a significant change, albeit a lower figure. Furthermore, it would not in any case preclude sustainable housing development, including affordable housing, above the minimum LHN figure.

28. In the Cardwell Farm decision, where my colleague did not find policy 4(a) to be out of date, he refers to the Council pointing to the introduction of the standard method for assessing LHN as being a significant change in circumstances since MOU1. He also refers to the quashed decision relating to this appeal and the associated HC Judgement. However, the full evidence presented to my colleague, relating to a different scheme in a different local planning authority area, is not before me to enable a clear picture of the background to his decision. That decision focuses consideration on the application of the SM in the context of MOU2, which he highlights sought to redistribute the LHN figures across those Central Lancashire Authorities. There is no attempt to do that in this case whereby the Council seeks to apply the SM without any redistribution, resulting in what I consider to be a significant difference in the housing requirement for South Ribble between that in policy 4(a) and that generated by the SM.

29. As referred to above, the Council has submitted what it claims, for the purposes of paragraph 73 and footnote 37 of the Framework, to be a review of the figure to be used as the basis for calculating the Council’s housing land supply when determining planning applications and appeals for housing schemes. This is in the form of a Record of Executive Member Decision taken under the Scheme of Delegation dated 8 March 2021 entitled Annual Housing Requirement. The Appellant disputes whether it can be described as a review.

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Even if I were to consider that document not to be a review, it would not alter my finding in relation to the introduction of the SM resulting in a significant change in the Council’s housing requirement figure that renders policy 4(a) out of date. I have therefore not considered the question of whether it constitutes a footnote 37 review in any further detail.

30. For the above reasons, I conclude that for the purposes of this appeal, it is appropriate to calculate the housing requirement against LHN using the SM due to the significant difference between the LHN figure and that of policy 4(a) amounting to a significant change in circumstances which renders policy 4(a) out of date.

Housing supply

31. Based on the LHN figure of 191 dwellings per annum, it is common ground between the parties that the Council would be able to demonstrate between 10.1 and 12.7 years’ worth of supply of deliverable housing sites. That difference arises due to the dispute between the Council and Appellant over the windfall allowance and the deliverability of two sites within the five year period. It represents the range from that of the Appellant’s position to that of the Council’s. Even if I were to accept the lower figure this would still represent a supply well in excess of the minimum five years’ worth required by the Framework. Therefore, whilst having considered the evidence relating to those disputed elements, the weight afforded to either end of the above supply range would not be significantly different. As such, I have not dealt with this particular matter in any further detail.

Safeguarded land

32. Policy G3 of the Local Plan, in setting out areas of safeguarded land, states that such land is not designated for any specific purpose within the Plan period. It goes on to state that existing uses will for the most part remain undisturbed during the Plan period or until the Plan is reviewed. The supporting text to that policy explains, amongst other things, that the presumption against built development on these safeguarded land sites will assist in directing development towards those areas allocated for development and also ensuring the permanence of the Green Belt.

33. Further to the High Court Judgement, it is agreed by the Council and Appellant that policy G3 is out of date in the scenario whereby the housing requirement is derived from the application of the SM, and I have no substantive basis to consider differently. This is due to the consequences upon, and the stark difference in, the housing distribution within the Central Lancashire Authorities, as referred to in the HC Judgement and was the only reason that the previous decision was quashed. It calls into question the existing quantity and distribution of safeguarded land, albeit that these would be matters for detailed consideration and analysis in the plan-making process rather than for this decision.

34. Nevertheless, even though policy G3 is out of date that does not mean it should be disapplied, but rather is a factor in the weight afforded it in the planning balance. Furthermore, it is a policy that remains consistent with the Framework which in paragraph 139 sets out that when defining Green Belt boundaries, plans should, amongst other things, where necessary, identify areas of safeguarded land between the urban area and the Green Belt, in order

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to meet longer-term development needs stretching well beyond the plan period; and make clear that safeguarded land is not allocated for development at the present time. Paragraph 139(d) goes onto state that planning permission for the permanent development of safeguarded land should only be granted following an update to a plan which proposes the development.

35. Although the proposed development would occupy only a relatively small part of area S3, it would still be a major form of development. The supporting text to policy G3 clarifies that some appropriate minor residential development adjacent to other properties would be considered. I, like my colleague in the quashed decision, do not consider the proposed scheme for up to 100 dwellings to represent minor residential development. As such, it would not be of a sufficiently small scale to be construed as ensuring that existing uses on the safeguarded land would for the most part remain undisturbed.

36. Notwithstanding any other material considerations relating to policy G3 being out of date, the proposed development would be contrary to that first element of policy G3 referred to above. Furthermore, as I have found that the Council has a minimum of 10.1 years’ worth of supply of deliverable housing sites, this would not put pressure on this safeguarded land to be developed now to meet an unmet need.

37. Policy G3 of the Local Plan goes on to state further that planning permission will not be granted for development which would prejudice potential longer term, comprehensive development of the land.

38. The submitted illustrative masterplan shows how vehicular and pedestrian access could be provided to adjoining land owned by Homes England. Furthermore, a joint illustrative masterplan prepared by the Appellant and Homes England, relating to the wider area of land comprising the site and that adjoining land, shows how access could be provided comprehensively to and between both sites. Unencumbered and unfettered access from the appeal site to the Homes England land could also be secured by a condition.

39. I acknowledge that this joint masterplan has not been submitted in connection with a planning application for that wider area of land comprising the two sites and that, as such, no formal consultation has been undertaken. Nevertheless, it does give an indication as to how the proposed development could be implemented without prejudicing development of that adjacent land. Furthermore, I acknowledge that the majority of the remaining part of S3, the land south of Coote Lane, is physically separated from the site by Church Lane and the railway line and thereby unlikely to be prejudiced in terms of access and so could be developed independently.

40. This corresponds with the examining Inspector in her Report dated 9 June 2015 on the examination into the site allocations and development management policies development plan document, where she referred to the site and land to the east, also in S3, as being physically separate parcels of land and that it would no doubt be possible for them to be developed in isolation. She does however go on to say that one of the benefits of promoting a comprehensive development of the larger allocated and safeguarded sites is that they would provide the opportunity to plan to meet the need for essential infrastructure improvements. She goes on to say that piecemeal development of smaller parcels of land within the overall site allocation is unlikely to provide the same opportunity.

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41. Furthermore, section 12 of the Framework relates to achieving well-designed places and my colleague, in the quashed decision, referred to the implications of piecemeal development of the S3 area as a whole. It was highlighted that there was no evidence to suggest that 100 dwellings alone would warrant contributions to, for example, local education provision and a nearby railway crossing at the present time or that such contributions would meet the tests in paragraph 56 of the Framework. I agree with this position and that the development of S3 as a whole may require local infrastructure improvements to properly support it in the interests of effective placemaking and efficient infrastructure delivery.

42. There would be a risk of missing the opportunity to achieve such effective placemaking and efficient infrastructure delivery if piecemeal developments such as that proposed come forward without the umbrella of an overall masterplan approach for S3. Such a masterplan approach would be consistent with the Government’s objectives in section 12 of the Framework to achieve well-designed places, including engagement with local communities and setting out a clear design vision and expectations, a finding by my colleague in the quashed decision which I have no substantive basis to disagree with. The submitted joint masterplan by the Appellant and Homes England, despite demonstrating how those particular two parts of S3 may interact in access terms in particular, does not clearly address any likely need for wider infrastructure provision.

43. I acknowledge that the proposals include provision for financial contributions towards local bus service improvements; to improve, enhance and maintain cycle parking at Lostock Hall train station; and towards improvements to off- site playing pitch and play space; together with provision for on-site public open space. However, that would all be tailored to the requirements of the proposed development and not to how infrastructure might be more appropriately provided for the overall development of the S3 area.

44. With regard to comprehensive development of the S3 area, my colleague in the previous decision also highlighted concerns raised about the extent of the distance from the existing urban area and that the proposed development would be on a pocket of safeguarded land in isolation.

45. In this respect I note that the site would be approximately 1.6 kilometres from Lostock Hall which is the nearest destination for a good range of shops and services to serve the day to day needs of prospective residents as well as the rail station. There is footway access alongside the intervening fairly direct roads. However, the distance involved, whilst within walking and cycling distance for some people, would be unlikely to encourage significant numbers to do so on a regular basis. Furthermore, as also highlighted by the previous Inspector, comments received from interested parties raised issues regarding the narrow roads and inadequate footways, the slope of the railway bridges and feeling unsafe when cycling. I agree that such concerns add some weight to the point about the likely degree of walking and cycling to Lostock Hall, albeit limited in the absence of substantive evidence to demonstrate that the proposed development would pose a risk to highway and pedestrian safety.

46. In terms of good place-making, for the above reasons, were the S3 land to be developed, an overall masterplan approach would give the opportunity to ensure the part nearest to the urban area, the land south of Coote Lane, could

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be developed first or at least allow careful consideration to be given to appropriate phasing of development.

47. I acknowledge that the development of the allocated Pickerings Farm site on the opposite side of Chain House Lane from the site would result in a significantly altered pattern of development in the locality whereby it is currently characterised by a largely ribbon form of development alongside Chain House Lane. However, that land opposite remains undeveloped and the proposed development alone, in the absence of that allocated development or other development on nearby safeguarded land, including within S3, would stand out as an uncharacteristic and disconnected form of development in that existing local context.

48. For the above reasons, the proposed development would be contrary to policy G3 of the Local Plan both in terms of that policy’s requirement that existing uses will for the most part remain undisturbed during the Plan period or until the Plan is reviewed, and in prejudicing potential longer term comprehensive development of the wider area of safeguarded land within which the appeal site is located. In respect of this issue, the proposed development would also be contrary to paragraph 139 and section 12 of the Framework.

49. I will consider this issue further in the planning balance, including in relation to policy G3 being out of date having regard to the deployment of the SM in calculating LHN and the consequences for the distribution of housing.

Planning balance

50. With regard to paragraph 11(d) of the Framework, the policies which are most important for determining the application are Core Strategy policy 4 and policy G3 of the Local Plan. I have found that Policy G3 and the element of policy 4 comprising paragraph 4(a) are out-of-date for the reasons given in my consideration of the main issues. The tilted balance set out in paragraph 11(d)ii of the Framework therefore applies.

51. I have also set out that the reasons for policy G3 being out of date calls into question the existing quantity and distribution of safeguarded land. However, I have found that the proposed development would be contrary to policy G3 and it remains the case that such extent and distribution of safeguarded land would be matters for detailed consideration and analysis in the plan-making process rather than for this decision. Furthermore, and importantly, I have found that the Council can demonstrate at least 10.1 years’ worth of supply of deliverable housing sites against its requirement to provide a minimum of 5 years’ supply.

52. There is therefore currently no substantive basis to consider that the site should be disregarded as safeguarded land and there is no housing need requirement to justify its development now. As such, whilst full weight cannot be afforded to policy G3 for the reasons relating to it being out of date, it should still be afforded significant weight.

53. Having regard to the Government’s objective of significantly boosting the supply of homes, the proposed development comprising upto 100 dwellings, and with the potential to progress without unnecessary delay, would be a benefit in this respect. This would include the social benefit of providing 30% of those homes as needed affordable housing. However, given that the Council can demonstrate a supply of deliverable housing sites well in excess of the

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minimum 5 year requirement, this significantly reduces the weight attached to such benefits.

54. As identified by my colleague in the quashed decision, the proposed development would have potential local economic benefits arising from construction jobs and support to construction related businesses; additional spending by prospective residents; the payment of the New Homes Bonus and additional Council Tax revenue. Provision of on-site public open space would also have the potential to benefit existing local residents as well as prospective occupiers. However, private amenity space, in the absence of any substantive evidence that it would be anything significantly more than that required to provide an acceptable living environment for prospective residents, would be unlikely to have wider benefit. Furthermore, I do not consider it likely that any new landscaping would necessarily be anything other than a neutral factor given that it would be in association with the proposed development which would represent a distinct change to the current open countryside character of the site.

55. Proposed financial contributions towards bus transport improvements, cycle parking at Lostock Hall train station, and improvements to off-site playing pitch and play space would have the potential to benefit existing local residents. However, such provision would fundamentally mitigate the effects of the proposed additional housing, thereby attracting little weight.

56. I note that the Cardwell Farm appeal was allowed following the application of the tilted balance. However, in that case, where there was also some limited harm to the character and appearance of the area, it was on the basis of there not being a 5 year HLS, unlike in this case, and it did not involve the issue of safeguarded land. The circumstances are therefore different, and I have in any case determined this appeal on its own merits.

57. For the above reasons, in light of my finding that significant weight should continue to be afforded to policy G3 despite being out of date, the proposed development’s conflict with the site being within safeguarded land and the unacceptable harm that would be caused in terms of prejudicing potential longer term comprehensive development of the wider area of safeguarded land within which the appeal site is located, would significantly and demonstrably outweigh the benefits identified, when assessed against the policies in the Framework taken as a whole.

Conclusion

58. For the above reasons, I conclude that the appeal should be dismissed.

Andrew Dawe

INSPECTOR

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APPEARANCES

FOR THE LOCAL PLANNING AUTHORITY:

Giles Cannock QC Instructed by Tasneem Safdar of South Ribble Borough Council

He called:

Greg Boyd BSc (Hons) MRTPI Senior Planner, Strategic Planning Team, Iceni Projects Limited

Nick Ireland BA (Hons) MTPl MRTPI Director, Strategic Planning Team, Iceni Projects Limited

FOR THE APPELLANT:

Vincent Fraser QC Instructed by Stephen Harris of Emery Planning

He called:

Ben Pycroft BA (Hons) Dip TP MRTPI Director, Emery Planning

Stephen Harris BSc (Hons) MRTPI Director, Emery Planning

INTERESTED PERSONS:

Councillor Karen Walton South Ribble Borough Council Ward Councillor for Farington West

Jean Berry Local resident and on behalf of Say No to Chainhouse Lane Development

Councillor Elaine Robb Parish Councillor for Farington and local resident

Michael Collison Local resident

Alan Pemberton Local resident

INQUIRY DOCUMENTS:

1. Appellant’s opening statement.

2. Opening submissions of the LPA.

3. Copy of notes of verbal presentations by interested parties, made on 16/03/21 unless indicated otherwise, as follows:

3.1. Councillor Karen Walton

3.2. Jean Berry

3.3. Councillor Elaine Robb

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3.4. Michael Collison (together with copies of photographs) on 17/03/21

3.5. Alan Pemberton on 17/03/21

4. Email from Jean Berry dated 17/03/21 concerning the Inquiry site visit.

5. Extract from South Ribble Borough Council Constitution dated February 2021, submitted by the Council.

6. Copy of email from the Council dated 18/03/21 concerning the timeline leading to the Record of Executive Member Decision Taken Under the Scheme of Delegation, dated 8 March 2021, titled Annual Housing Requirement.

7. Email from Appellant dated 18/03/21 concerning arrangements for unaccompanied site visit.

8. Email from Council dated 19/03/21 providing update concerning the land at Belle Field Close, Penwortham, site at Leyland Road, land off Claytongate Drive (Site CC), confirming that the County Council exchanged contracts for the sale of this land for residential development on 18/03/21 and that the developers are now under a contractual obligation to submit a planning application.

9. Copies of Central Lancashire Design Guide and Open Space and Playing Pitch Supplementary Planning Documents.

10. Email from Appellant dated 19/03/21 appending copies of plans referred to in suggested conditions 6 and 22, together with a reworded condition to replace suggested conditions 22 and 23, and also appending an email from the highway authority dated 13/11/19 concerning a recorded accident on 7/10/16 around 1 mile west of the site.

11. Copy of email from Preston City Council dated 18/03/21 expressing its intention to challenge the Appeal decision for Land at Cardwell Farm Ref. APP/N2345/W/20/3258889.

12. Email from Appellant dated 19/03/21 relating to Pickerings Farm, clarifying that evidence presented was that the masterplan includes the S2 land, not the current application, and that the application deals with EE only.

13. Costs application on behalf of Wainhomes (North West) Ltd.

14. Closing submissions of the LPA.

15. Appellant’s Closing Statement.

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Appeal Decision Inquiry Held from 12 to 15 November 2019 Site visit made on 14 November 2019 by S Hunt BA (Hons) MA MRTPI

Inspector appointed by the Secretary of State

Decision date: 13th December 2019

Appeal Ref: APP/F2360/W/19/3234070 Land to the South of Chain House Lane, Whitestake, Preston • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. • The appeal is made by Wainhomes (North West) Ltd against the decision of South Ribble Borough Council. • The application Ref 07/2018/9316/OUT, dated 4 December 2018, was refused by notice dated 27 June 2019. • The development proposed is Outline planning permission for up to 100 dwellings with access and associated works.

Decision

1. The appeal is dismissed.

Procedural Matters

2. It is noted that a more detailed site address has been set out in Council documents including the Decision Notice. Notwithstanding this, I find that the slight difference in how the site address is stated has no substantive impact in defining the location of the proposals therefore I have referred to the address as stated on the original application form.

3. The application was made in outline form with all matters reserved except for access. Details of appearance, landscaping, layout and scale are therefore not considered in this decision. An amended access plan (ref. SCP 18355/F02 Rev B) and corresponding illustrative layout (ref. 1638WHD/CHL/IM01 Rev B) have been submitted which relate to a minor alteration to the access to avoid a tree on the neighbour’s boundary. They have been agreed by the Council and the Highway Authority. As the revised plans do not substantively alter the proposals, and would not prejudice the interests of interested parties I have accepted them.

4. Following the submission of an Air Quality Assessment the Council agreed to withdraw the third reason for refusal. Insufficient evidence in relation to air quality therefore no longer forms one of the main issues, and the main parties did not give evidence at the inquiry on this matter. However I note that air quality remains a concern for a number of local residents.

5. A completed agreement under Section 106 of the Town and Country Planning Act (S.106) was submitted at the inquiry, and a Community Infrastructure Levy (CIL) Compliance Statement was submitted by the Council. The S.106 makes provision for 30% affordable housing and on-site public open space, and https://www.gov.uk/planning-inspectorate

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contributions to off-site play space, mobile speed indicator devices, cycle lockers at a local railway station, and travel plan monitoring. I am satisfied that the agreement would accord with the tests set out in the Community Infrastructure Levy Regulations and have had regard to its’ provisions in the consideration of this appeal.

Main Issues

6. The main issues in this appeal are:

i) The South Ribble Borough Council housing requirement and whether a five year supply of deliverable housing land can be demonstrated by the Council; and

ii) Whether the proposed development would prejudice the Council’s ability to manage the comprehensive development of the wider area of safeguarded land within which the appeal site is located, with particular regard to policy G3 of the South Ribble Local Plan 2015.

Reasons

7. Section 70(2) of the Town and Country Planning Act 1990 requires regard to be had to the provisions of the development plan, so far as material to the application, and to any other material considerations. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that if regard is to be had to the development plan for any determination then that determination must be made in accordance with the plan unless material considerations indicate otherwise. The National Planning Policy Framework (the Framework) is such a material consideration.

8. The development plan for the area comprises the Central Lancashire Core Strategy (CS), adopted in July 2012, and the South Ribble Borough Council Local Plan (SRLP), adopted in July 2015. The appeal site forms part of a larger site S3: South of Coote Lane, Chain House Lane, Farington which is identified as Safeguarded Land on the adopted Policies Map. Policy G3 of the SRLP, in relation to safeguarded land, is the only policy cited in the two remaining reasons for refusal. Policy 4 of the CS is also directly of relevance in relation to the housing requirement and calculation of the five year housing land supply.

Housing Requirement

9. Policy 4 of the 2012 CS sets out the housing requirement for the three Central Lancashire authorities; Preston, South Ribble and Chorley, which form one Housing Market Area (HMA). A figure of 417 dwellings per annum (pa) is specified for South Ribble at part (a) of the Policy, and parts (b) to (d) relate to review of housing delivery performance, and ensuring that a five year supply and sufficient housing land is identified by site allocations. Related to this, the Appellant’s evidence refers to Appendix D of the CS and Appendix 7 of the SRLP which set out the performance monitoring framework, specifically those performance indicators which relate to the housing requirement. The supporting text to Policy 4 of the CS explains that the housing figures stem from the now revoked 2008 Regional Spatial Strategy (RSS). I note that the evidence for those figures dates from several years earlier (2003).

10. Paragraph 73 of the Framework requires local planning authorities to identify and update annually a supply of specific deliverable sites sufficient to provide a

https://www.gov.uk/planning-inspectorate 2

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minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where those policies are more than five years old. There is no doubt that the strategic policies within the 2012 CS are more than five years old.

11. Footnote 37 to paragraph 73 gives the proviso ‘Unless these strategic policies have been reviewed and found not to require updating’. The footnote also clarifies that where local housing need is used as the basis for the assessment, the standard method should be used for calculating the supply, as set out in national planning guidance.

12. A key point of dispute in this appeal relates to whether such a review of strategic policies has taken place, and therefore whether the figure in Policy 4 of the CS should continue to be used to calculate the five year housing land supply in the Borough. The Council’s evidence suggests that the standard method should now be used instead, at 206 dwellings pa (216 pa with the 5% buffer confirmed by the Housing Delivery Test). South Ribble’s 2019 Housing Land Position Statement (HLPS) gives both scenarios1.

13. The differences between the two methods of calculating the requirement, and the main parties’ positions on the housing land supply is summarised in the table below.

2012 Core Strategy 2019 Standard Method Policy 4

Annual 417 216 Requirement

Appellant Council Appellant Council Council (2019 (2019 HLPS) (at start of HLPS) inquiry)

Deliverable 3.24 years 5.96 N/A 18.5 years 17.8 years housing land years supply

14. In 2016-17 a joint Strategic Housing Market Assessment2 (SHMA) was produced which identified an Objectively Assessed Need (OAN) for the three Central Lancashire authorities in the HMA. This totals of 1,184 dwellings pa, with 440 dwellings pa for South Ribble. The three authorities subsequently published a Memorandum of Understanding3 (MOU) which set out that the CS housing requirement figures in Policy 4 should be retained for a number of reasons4. The dispute between the parties in relation to the housing

1 CD 6.1 – South Ribble Housing Land Position Statement 2019 2 CD 6.8 – Central Lancashire Strategic Housing Market Assessment (September 2017) 3 CD 6.9 – Joint Memorandum of Understanding and Statement of Co-operation relating to the provision of housing land (September 2017) 4 CD 6.9 MOU paragraph 5.10 https://www.gov.uk/planning-inspectorate 3

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requirement principally revolves around whether the publication of the MOU in 2017 constituted a review for the purposes of footnote 37 to paragraph 73 of the Framework.

16. There is limited evidence before me to support this and Mrs Harding’s further contention that the whole of Policy 4 was not reviewed; i.e. the SHMA only relates to part (a) in relation to the figures. Nonetheless, it does provide me with further doubt about whether the MOU and SHMA process leading up to it constituted a full review.

17. I acknowledge the Appellant’s reference to page 21 of the 2019 HLPS which, when referring to the MOU, states ‘This could be considered to have been a review of the policy in terms of footnote 37 of the NPPF’. To my mind the word ‘could’ also raises an element of doubt, and highlights that the situation is by no means clear cut. Mr Pycroft asserted that whilst the MOU alone may not have been a review of CS Policy 4 it was the outcome of the production of the SHMA, and the entire process constituted a review. I do not agree for the following reasons.

18. The SHMA is not a review of policy but part of the evidence base for a future review of the plan. I have regard to paragraph 1.2 of the SHMA which states: ‘The SHMA does not set housing targets. It provides an assessment of the need for housing across the functional Housing Market Area (HMA), making no judgements regarding future policy decisions which the Councils may take’.

19. Mr Pycroft’s evidence also refers to a 2016 report to the Central Lancashire Strategic Planning Joint Advisory Committee5 (JAC). To my mind the paragraphs he refers to simply inform members of the JAC that the fifth anniversary of the CS is approaching, and that Government guidance requires plans and policies to be reviewed. On reading the report as a whole, it also informs members that the main purpose of the SHMA is to ensure the Councils had a full objectively assessed need (FOAN) in accordance with paragraph 47 of the former 2012 Framework. This is also evident in a subsequent report to the JAC in March 20176 which sets out that the FOAN is an evidence figure, not policy. Indeed, I note that CS Policy 4 is not specifically mentioned in either of these reports and references to ‘review’ are in the context of a future review of the CS7.

20. I have also had regard to the Brindle Road decision8 where the Inspector was not convinced that the MOU was a review, although I note the basis on which these comments were made as highlighted by the Appellant. In view of the above, and the inconclusive evidence supplied by the Council regarding lack of

5 Ben Pycroft Proof of Evidence paragraph 7.39-7.41 & Appx BP2-H : Report to Central Lancashire Strategic Planning Joint Advisory Committee 27 June 2016 – Paragraph 19 6 Ben Pycroft Appx BP2-I : Report to Central Lancashire Strategic Planning Joint Advisory Committee 2 March 2017 7 As above - Paragraphs 20 and 22 8 CD 7.11 – APP/F2360/W/18/3198822 Land off Brindle Road, Bamber Bridge, Preston PR5 6YP (paragraph 41) https://www.gov.uk/planning-inspectorate 4

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consultation and review of the whole policy, I do not consider that the SHMA process constituted a review of Policy 4.

21. I acknowledge that both Preston and Chorley currently use the CS housing requirement in decision making and in their most recent Housing Land Position statements9. Whilst I do not have the benefit of direct evidence from Preston and Chorley Councils, I have had regard to the evidence produced by Mr Pycroft and it seems to me that there are various other reasons, not solely relating to the MOU, that they continue to use the CS figures and consider that a review of Policy 4 has taken place.

22. The Preston City Council press release10 does not specifically refer to the MOU, instead it refers to the costs associated with defending two recent appeal decisions in their area which concluded that Preston did not have a five year supply of housing. I cannot make any conclusions on this as those decisions are not in the evidence before me. Preston’s latest housing land position statement (HLPS)11 also refers to those appeal decisions (at paragraph 1.6), and draws attention to the Preston Local Plan examination where it was agreed that that there was no requirement to reconsider the Objectively Assessed Need. Mr Pycroft pointed out paragraph 1.9 of the HLPS12 in relation to the MOU. However, to my mind this suggests uncertainty given the punctuation of ‘review’ (in single quotation marks).

23. Preston’s HLPS goes on to explain at paragraph 1.10 that its’ OAN resulting from the SHMA is lower than the CS requirement, and it seems to me that this was a factor in the aforementioned appeal decisions. This contrasts to the situation in South Ribble, where the OAN was calculated to be very similar (and slightly higher) to the existing CS requirement.

24. Chorley’s 2019 housing supply statement also applies the CS requirement figure but does not refer to the MOU in doing so. Mr Pycroft’s evidence13 in relation to a recent appeal (Carrington Road14) gives further explanation; their reasoning for continuing to apply the CS requirement was that it was reviewed as part of the examination of the Chorley Local Plan in 2015. I also have regard to a very recent Chorley planning committee report in relation to a resubmission of a previously dismissed appeal at Pear Tree Lane15, where Chorley set out their reasons as to why they consider CS Policy 4 is not out-of- date.

25. It seems to me that the reasoning taken by Chorley and Preston for their use of the CS figure is specific to those Councils and does not necessarily directly apply to the South Ribble situation. In view of this, I am not satisfied that the evidence demonstrates that they are applying the CS figure for the reason that the MOU (and SHMA process) constituted a review.

26. It has also been put to me by the Council that the 2017 MOU has been overtaken by events, i.e. a ‘significant change’ has taken place. Paragraph 33

9 Ben Pycroft Appx BP2-D : Preston Housing Land Position 2019; BP2-F Chorley Five Year Housing Supply Statement 2019; BP2-J Preston City Council press release 22.01.19; and Additional Document 11 – Chorley Planning Committee Report 12 November 2019 10 Ben Pycroft Appx BP2-J : Preston City Council press release 22.01.19 11 Ben Pycroft Appx BP2-D : Preston Housing Land Position 2019 12 Ben Pycroft Proof of Evidence paras 7.28 and 7.30 13 Ben Pycroft Appx BP2-G : Chorley Council appeal statement Carrington Road APP/D2320/W/3228123 14 CD 7.19 Carrington Road APP/D2320/W/3228123 15 CD 7.21 Pear Tree Lane APP/D2320/W/17/3173275 and Additional Document 11 https://www.gov.uk/planning-inspectorate 5

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of the Framework requires local authorities to update relevant strategic policies at least once every five years if their applicable local housing need figure has changed significantly. ‘Significantly’ is open to interpretation; and moreover the Framework does not specify whether such a change in the figure is positive or negative.

27. Paragraph 062 of the Planning Practice Guidance (PPG) on plan making16 gives guidance on review of policies, stating that where a review was undertaken prior to publication of the Framework in 2018 but within the last 5 years, then that plan will continue to constitute the up-to-date plan policies unless there have been significant changes in circumstances. There is a difference in interpretation of the guidance between the main parties.

28. The 2017 MOU was produced prior to the publication of the 2018 Framework. The PPG is not explicit in that it only refers to a significant change as being an existing figure that is significantly below the number generated using the standard method. I agree with the Council that the wording of paragraph 062 does not necessarily discount a situation where the existing plan figure is significantly above the number generated using the standard method, as is the case in South Ribble. This therefore adds little to the Appellants argument that a review of the CS has taken place.

29. The 2017 MOU itself sets out review arrangements at section 7; no less than every three years and when new evidence that renders the MOU out-of-date has emerged. Such a review of the MOU is currently taking place. A 2019 Draft MOU17 relating to the provision and distribution of housing land has been recently produced by the Central Lancashire authorities. This follows a Housing Study18 which has informed a proposed interim position in advance of the adoption of the new Local Plan for Central Lancashire.

30. I was presented with a copy of a report to the Council’s cabinet19 at the start of the inquiry which seeks approval for agreement to the new MOU. A short consultation period had commenced on the MOU at the time of the inquiry and it is understood that the responses would then be reported to Full Council. There was some discussion about the status of these documents and the weight to be attached to them.

31. They are not policy documents and they are in draft form; therefore they do not currently formally represent the interim position on housing requirements for Central Lancashire. I note this stance has been recently taken by Preston City Council20. I also accept that the 2019 Housing Study does not consider a review of the CS figures; it only considers the Standard Method calculation of housing supply and a re-distribution between the three authorities.

32. It is necessary for the completion of consultation and a final version of the MOU to be subsequently formally adopted by all three authorities before more certainty can be attached to its figures. It sets out a yearly requirement of 334 dwellings per annum (pa) for South Ribble. The Appellant has questioned the

16 Reference ID: 61-062-20190315 17 Additional Document 2 : Draft Memorandum of Understanding and Statement of Co-operation relating to the provision and distribution of housing land (December 2019) 18 Additional Document 1 : Central Lancashire Housing Study by Iceni Projects Limited on behalf of Chorley, Preston and South Ribble (October 2019) 19 Additional Document 3 : Report to Cabinet 13 November 2019 20 Late document 7 Emery Planning Statement on Revised MOU Appx 2: Preston City Council Planning Committee meeting minutes 7 November 2019 https://www.gov.uk/planning-inspectorate 6

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adequacy of the 2 week consultation. However, this is not a matter for this Section 78 appeal to consider. Nonetheless these documents are a material consideration.

33. I am mindful that if Preston and Chorley applied the standard method (not the draft re-distributed figure) to their housing requirement now, Preston would be able to demonstrate a five year supply and Chorley would not. This inconsistency in the way the three Central Lancashire Authorities are currently making decisions relating to housing (together with with the age of the CS, current consultation on Issues and Options for a new Central Lancashire Local Plan, and the introduction of the standard method) have plainly contributed to current events where the three authorities are consulting on a revised MOU to provide more clarity in decision making.

34. I am also conscious that my conclusions in respect of the housing supply requirement for South Ribble may have consequences for decision making by the neighbouring authorities. Convincing arguments have been made by the Appellants for retaining the current CS housing requirement in view of the redistribution which may potentially result from this, but undue reliance seems to be placed on what the two other authorities are currently doing and how the use of the Standard Method will affect them. This is a matter for their own decision making and for the emerging Central Lancashire Local Plan in carrying out a full review of housing policies.

35. No matter what the outcome of the 2019 MOU consultation and timing for its final publication, the figures contained within it and the distribution between the authorities would be an interim position. The production of the new Central Lancashire Local Plan is at an early stage with consultation on Issues and Options. It is for that review to fully consider the provision and distribution of new homes in the area. Indeed the Issues and Options document states ‘it is likely that the number of homes we must deliver for this plan period of 2021- 2036 will be different to our existing policy’ and confirms use of the standard housing method. It also clarifies that the three councils are still looking into the number of homes needed and how they will be spread; ‘We will have more information about this when we next consult with our communities’21.

36. The Housing Study, albeit not a final report, acknowledges in its introduction that the previously agreed MOU needs to be revisited, and that a robust basis for working to agree an updated level of housing need and its distribution across the HMA is required through an updated MOU. I do not make any attempt to predicate the outcome of the final Housing Study and the current consultation on the draft 2019 MOU. However it is clear to me that the direction of travel by all three authorities is towards the standard method and a re-distribution of the housing requirement based on a range of factors including population, workforce and jobs distribution and constraints (including Green Belt).

37. Having regard to paragraphs 33, 73 (and footnote 37) and 212-213 of the NPPF, and the PPG paragraph 062, I conclude that the figure within Policy 4 of 417 dwellings per annum is out-of-date on several counts : i) the strategic policies are over 5 years old; ii) my conclusions that the 2017 MOU (and SHMA leading up to it) did not properly constitute a review; and iii) the ‘significant change’ resulting from the introduction of the standard method in the 2018

21 CD 5.1 Central Lancashire Local Plan Issues and Options Consultation November 2019 para’s 3.3-3.7 https://www.gov.uk/planning-inspectorate 7

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Framework and the Council’s significantly lower figure arising from the standard method calculation. Additionally, the MOU itself requires review by September 2020; indeed a new version is currently undergoing consultation.

38. The Council no longer consider the 2012 CS figure of 417 pa to be a true reflection of the Borough’s housing requirement. Conversely, the 216 dwellings pa arising from use of the standard method as put forward in the Council’s case may not be a true reflection of their needs either, having regard to the suggested re-distribution set out in the Housing Study and 2019 MOU. These are material considerations to which I give moderate weight.

39. Whilst I do not attempt to establish what the final yearly requirement figure for South Ribble should be (216 or 334 or some other figure) - this is a matter for the Central Lancashire authorities to agree in view of the draft status of the new MOU – I conclude that the standard method of calculating local housing need should be used for the purposes of this appeal and this is set out further in the sections below.

Housing Land Supply

40. I have previously highlighted the significant difference in the housing land supply figure between the Council and the Appellant. Prior to the inquiry the Council’s figure was 18.5 years, and the Appellant’s figure stood at 3.24 years. This gulf in the supply largely results from the starting point of how the housing requirement should be calculated as set out above.

41. Differences also arise in relation to 13 allocated sites, and discounts to be made in respect of whether they are deliverable in accordance with the definition in Annex 2 of the Framework and guidance set out in the PPG Housing and Economic Land Availability Assessment. Additionally, there is dispute regarding calculation of the windfall allowance.

42. As I have already concluded that as CS Policy 4 is more than five years old and has not been reviewed in South Ribble, the housing requirement should be calculated against local housing need using the standard method. As such I do not go any further in considering the housing land supply on the basis of the CS requirement.

43. A number of concessions were made by Mrs Harding at the inquiry in relation to a lack of clear evidence on whether the 13 allocated sites are deliverable within five years. Some of the discounts were significant, bringing the Council’s original 18.5 year figure down accordingly. The parties agreed that evidence included beyond the base date (31st March 2019) should not be included; i.e. the ‘strict approach’. I note that the appeal decisions supplied illustrate that there is no one universally accepted approach in respect of accepting evidence beyond the base date.

44. If I were to accept Mr Pycroft’s full set of discounts22, there would be a deliverable supply of 2,174 homes, resulting in the 5 year supply being just over 10 years using the local housing need requirement. I note that progress on sites such as the Test Track (Local Plan allocation FF)23 and others has been made since the base date, and if there was a more marginal supply situation I may be persuaded to take the clear post-base date evidence into account.

22 Ben Pycroft Proof of Evidence para’s 11.47-11.48 23 Additional Documents 12 and 13 – Test Track decision notice and S.106 https://www.gov.uk/planning-inspectorate 8

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45. Notwithstanding if I were to use the ‘strict approach’ to the base date only, the supply would remain at well above five years using the local housing need requirement figure of 216 dwellings pa. Any difference in calculations and evidence on windfall allowances would also make little difference to the supply figure, which is not marginal, therefore I do not go any further into this matter.

46. I am mindful that the local housing need figure is currently being reviewed by the three Central Lancashire authorities, as explained above, through the Housing Study and a new MOU. The Council do not put forward this higher re- distributed figure of 334 dwellings pa, due to it currently being a draft figure. Nonetheless, Mrs Harding agreed that the 216 pa figure she relies on does not represent a ‘true reflection’ of South Ribble’s housing requirements. Indeed it is a minimum, and I have regard to the Government’s aim to significantly boost housing supply as set out in paragraph 59 of the Framework.

47. Whilst I give the Housing Study and 2019 MOU limited weight given that consultation has not been completed and the 2019 MOU is unlikely to be formally adopted prior to my decision, for completeness I set out below what the 5 year supply would be if the higher re-distributed figure of 334 pa were to be utilised, compared to the local housing need figure of 206 pa currently relied on by the Council.

Requirement Local Housing Redistributed Need Local Housing Need (2019 MOU)

A Annual Requirement 206 334

B Past Shortfall at 31st March 2019 0 0

C Amount of past shortfall to be 0 0 addressed in the five year period

D Total five year requirement (A x 5 1030 1670 + C)

E Requirement plus 5% buffer (D + 1082 1754 5%)

F Annual requirement plus buffer (E / 216 347 5 years)

Supply

G Five year supply 1st April 2019 to 2174 2174 31st March 2024

H Years supply (G/F) 10.06 years 6.27 years

https://www.gov.uk/planning-inspectorate 9

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48. It is evident to me that whichever figure is used, the supply figure would be well in excess of five years. Importantly, I have based this on the worst case scenario – i.e. if I were to accept all the discounts suggested by Mr Pycroft, and if I take the ‘strict approach’ of excluding any evidence after the base date.

49. Consequently, on the basis of what I have heard I am satisfied that the Council is currently able to demonstrate a five year supply of deliverable housing land, albeit that it would not be as high as originally calculated. The tilted balance is therefore not engaged by virtue of a failure to demonstrate sufficient housing land provision.

Safeguarded Land

50. It is common ground that the appeal proposals are contrary to Policy G3 of the SRLP. The Policy requires such land to remain safeguarded and not designated for any specific purpose within the plan period. After identifying 5 different areas of safeguarded land in the Borough, including S3, it specifies that existing uses will for the most part remain undisturbed during the plan period or until the plan is reviewed. Finally, it states that planning permission will not be granted for development which could prejudice potential longer term comprehensive development of land.

51. Paragraph 213 of the Framework indicates that due weight should be given to policies according to their degree of consistency with the Framework. Paragraph 139(c) of the Framework states that where necessary development plans should identify areas of safeguarded land between the urban area and the Green Belt in order to meet longer-term development needs stretching well beyond the plan period. Paragraph 139(d) indicates that planning permission for the permanent development of safeguarded land should only be granted following an update to a plan which proposes the development.

52. I attach significant weight to Policy G3 in view of its consistency with the Framework. The proposals are clearly in conflict with the first part of the Policy, as the site forms part of S3 ‘South of Coote Lane, Chain House Lane, Farriington’. The first part of the final paragraph of the Policy confirms; ‘Existing uses will for the most part remain undisturbed during the Plan period or until the Plan is reviewed’. The SRLP was adopted in 2015, and is well within its 15 year plan period.

53. There was some discussion at the inquiry about the wording ‘for the most part remain undisturbed’. I do not accept the Appellant’s suggestion that as the site is a only a small part of the overall site S3, its development would not be harmful. I acknowledge that there is some flexibility in Policy G3 but do not accept the Appellant’s view that there is not an explicit requirement for the land to remain as it is. Indeed ‘most part’ does not invite development of such a scale that would be anything other than minor.

54. The supporting text to the Policy provides further commentary, and suggests at paragraph 10.36 that the same types of development that would be generally acceptable in the Green Belt would be allowed: ‘… some appropriate minor residential development adjacent to other properties would be considered’. It is my view that this wording is aimed at minor infill development, and 100 dwellings would plainly not constitute this type of development. The proposals would conflict with this particular element of Policy G3.

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55. Policy G3 does not mention a lack of five year housing land supply as one of the circumstances in which the safeguarded land could be released for development. Moreover, it does not specify the type of development that it is safeguarded for. The Council put to me that it does not automatically mean the land would ultimately be used for housing, and suggest employment (specifically office) uses as an alternative, or as open space, serving a purpose as a ‘green lung’.

56. The point about potential employment land was raised in the Coote Lane decision24 in relation to another part of the same safeguarded site S3. Although a relatively dated decision (2014) and prior to the adoption of the SRLP, Policy G3 remains unchanged in the current Local Plan, and there is little evidence to persuade me to deviate from that Inspector’s view.

57. I was presented with an update to the Central Lancashire Employment Study25 at the inquiry which suggests an additional need for employment land including office space over and above the previous employment land study published in 2017. It is not site specific, and by no means suggests the appeal site or any safeguarded land should be released for such use. However it lends some weight to the Council’s case in that if the site were to be released for development whether as part of a Local Plan review or some other circumstance, it does not necessarily follow that it would wholly be used for housing.

58. I concur with the Appellant that the appeal site is a relatively small part of the larger S3 safeguarded land, and if such different uses were deemed appropriate there is other land which could be utilised. Notwithstanding this, it is not for this Section 78 appeal decision to determine what might be an appropriate alternative use, whether as employment, green space or some other use.

59. The second part of the final paragraph of Policy G3 goes further in stating that; ‘Planning permission will not be granted for development which would prejudice potential longer term, comprehensive development of the land’. This is the basis for the second reason for refusal.

60. In response to this reason for refusal the Appellant provided a joint illustrative masterplan26, which followed their discussions with Homes England, the landowners of the remainder of the part of S3 between Chain House Lane and the railway line. I note that Homes England have withdrawn their objection to the proposals subject to conditions.

61. The Council and interested parties queried why planning permission was not applied for in relation to the whole area of land to enable a comprehensive scheme. However, any future plans for adjoining land are not part of the appeal proposals before me.

62. The joint illustrative masterplan shows that vehicular and pedestrian/cycle links could provide access to adjoining land. The condition suggested by Homes England seeks to ensure access to their land remains unfettered. Nonetheless,

24 CD 7.7 : APP/F2360/A/13/2202973 Coote Lane, Farington – Para. 18 25 Additional Document 14 : Central Lancashire Employment Land Study – Objectively Assessed Needs Update 2019 (April 2019) 26 Stephen Harris Proof of Evidence Appx SH1 https://www.gov.uk/planning-inspectorate 11

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the plan is purely illustrative and has not been agreed by the Council nor been subject to public consultation, nor does it include the entirety of S3.

63. I viewed the remaining part of S3 (Coote Lane) on my unaccompanied site visit prior to the inquiry and I agree with the Appellant that Coote Lane and Chain House Lane, separated by the railway line, are discrete parts of S3 which could be developed independently. This corresponds with the position taken by the Inspector within the Examination Report into the SRLP in 201527. The sites are both physically and visually severed by Church Lane and the railway line.

64. It would be a matter for the Council in relation to any future wider proposals and/or Local Plan review whether to require a Masterplan for the entirety of S3. The Council have aspirations for stronger placemaking and effective engagement with communities as required by paragraph 124 of the Framework, and for seeking to ensure the opportunity to plan for future infrastructure needs. I note this point was raised in paragraph 48 of the aforementioned Examination Report, where the Inspector stated ‘… one of the benefits of promoting a comprehensive development of the larger allocated and safeguarded sites is that they would provide the opportunity to plan to meet the need for essential infrastructure improvements. Piecemeal development of smaller parcels of land within the overall site allocation is unlikely to provide the same opportunity’.

65. I would agree with the Local Plan Inspector’s position in respect of the wider S3 safeguarded site which is of a significant scale. There is no evidence before me to suggest that 100 dwellings alone would warrant contributions to, for example, local education provision and a nearby railway crossing at the present time (or that such contributions would meet the tests in paragraph 56 of the Framework). Nonetheless in its entirety the development of the wider S3 site could have implications for local infrastructure and services. In the interests of effective placemaking and efficient infrastructure delivery, any identified improvements may need to be funded and planned comprehensively and piecemeal development is unlikely to achieve this.

66. The Council’s aspiration to comprehensively plan for S3 in its entirety via an agreed masterplan would meet the Government’s objectives to engage with local communities and set out a clear design vision and expectations. They have a proven track record of masterplan requirements for the major allocated development sites in the Borough (including allocation EE ‘Pickerings Farm’ opposite the site). A comprehensive masterplan can also aid in provision for any necessary infrastructure improvements, open space and so on. Whilst the Appellant’s joint Masterplan is a useful illustrative plan to show how this part of S3 may be developed comprehensively in the future in terms of access links, it does not address these other important points of wider infrastructure provision and links within the wider area.

67. Another concern of the Council in relation to the lack of comprehensive development relates to the location of the site distanced from the existing urban area. They state that consideration should first be given to the part of S3 which is closest to the urban pattern rather than pockets of safeguarded land in isolation. The Appellant contends that the site is accessible to local services and public transport, setting out a range of distances in the evidence.

27 CD 4.3 : Report on the Examination into the Site Allocations and Development Management Policies Development Plan Document (June 2015) – para. 48 https://www.gov.uk/planning-inspectorate 12

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68. The site is around 1.6km from Lostock Hall, which has a range of shops and services and a railway station. Whist walking or cycling this distance may be possible for some people, and the routes are relatively direct, I consider it unlikely that a good proportion of future residents of the site would do so. On this point, I have had regard to the comments from interested parties who raised issues regarding the narrow roads and inadequate footways, the slope of the railway bridges and feeling unsafe when cycling which adds weight to this view.

69. There is a bus stop alongside the site with hourly services to Preston and Chorley. Interested parties told me that these services are not useful to them as they do not go to more local destinations and finish too early. Nonetheless a bus service to larger conurbations exists and I acknowledge the Section 106 Agreement which provides for a contribution towards the bus service and cycle parking enhancements at Lostock Hall railway station - these are positive benefits of the proposals. Such factors do not however outweigh my concerns regarding piecemeal development and the location of the site distant from the edge of the existing urban area.

70. I agree with the Council that the Coote Lane section of S3 is better related to the existing urban edge than the appeal site. An overall Masterplan for S3 in its entirety would assist in appropriate phasing so that land closest to the existing settlements could be developed first.

71. Development of the appeal site in isolation, in advance of the remainder of adjoining and nearby land forming S3 would result in harm in this respect. In coming to this conclusion I have had regard to the existing ribbon development along Chain House Lane, and acknowledge that over time the area will become more built up once development commences on the Pickerings Farm allocated site opposite commences. Nonetheless, the development of the appeal site alone would represent a disconnected pocket of housing in this otherwise currently undeveloped area.

72. I acknowledge that, with the suggested conditions28, the development of the site would not preclude highway and pedestrian/cycle links to adjoining land and in this respect would not prejudice these technical aspects of longer term, comprehensive development of the land (whether for housing or other uses). However, it would not establish a strong sense of place nor optimise the site’s potential to accommodate and sustain an appropriate amount and mix of development and support local facilities and transport networks, contrary to section 12 of the Framework in achieving well-designed places. It also fails to represent effective community engagement, and to take the opportunities available for improving the character and quality of an area and the way it functions.

73. Appeal decisions have been put to me relating to safeguarded land both in the Central Lancashire area and elsewhere. However, none of them are directly comparable in terms of the housing land supply coupled with the current local and national policy situation. In those cases relating to the Leeds Unitary Development Plan29, the plan period had ended with no up to date adopted development plan being in place, together with a shortfall of housing land

28 Catherine Lewis Proof of Evidence and Additional Document 16 – Revised condition 19 29 CD 7.1, 7.3, 7.4 and 7.5 https://www.gov.uk/planning-inspectorate 13

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rendering the ‘protected area of search’ policy out-of-date and I therefore find them of little relevance to this appeal.

74. The proposed development would be contrary to Policy G3 of the 2015 SRLP both in regard to its requirement to ensure existing uses for the most part remain undisturbed during the Plan period (or until the Plan is reviewed), and in terms of prejudice to potential longer term, comprehensive development of safeguarded land within which the appeal site is located. In turn the proposals are also contrary to paragraph 139 and section 12 of the Framework. I do not consider that this harm could be overcome by the suggested conditions or the Section 106 Agreement.

Other Matters

75. I heard evidence from several interested parties at the inquiry, including ‘Say No to Chain House Lane’, and I have also carefully considered the numerous written representations submitted during the planning application process and for the appeal. Issues raised relate primarily to impact on area character and appearance, highway safety and traffic issues, drainage and flooding, trees, wildlife, pollution, and lack of local infrastructure and services. The appellant’s evidence sets out how such issues have been considered in the proposals, and proposes mitigation via planning conditions and a Section 106 Agreement. Whilst I have had regard to the matters referred to, they do not give rise to harm which weighs significantly against the proposals.

76. I note that the statutory authorities and other consultees have not raised objections, including Lancashire County Council as the local highway authority Should outline permission be granted such matters could be resolved at reserved matters stage, and by imposition of appropriate conditions and Highway Agreements.

77. The Council clarified in evidence that the second reason for refusal in its suggestion of ‘prejudice’ relates to Policy G3 and comprehensive development of the wider area of safeguarded land only. This is quite separate to the prematurity point set out in paragraph 49 of the Framework in terms of undermining the plan-making process. There is no harm to the emerging review of the Central Lancashire Local Plan.

78. The City Deal30 is frequently referred to by the Appellants relating to aims to boost the housing supply in the area. However, the City Deal is not part of the Development Plan; rather it assists in supporting investment into infrastructure delivery programme for Preston, South Ribble and Lancashire. It has ambitious targets for housing delivery, related to employment and infrastructure delivery. Whilst it is briefly referred to in the SRLP foreword, I give it limited weight given that it is not embodied in policy and is currently undergoing a mid-term review which raises some uncertainty over its continuation.

79. The evidence of Mr Harris highlights that CS Policy 4 allows for a series of ‘contingency options’ identified in the performance monitoring framework31 should there be a shortfall in housing delivery. Likewise, there are contingency actions set out within the SRLP32 in the event that a shortfall arises. Mr Harris suggests that releasing safeguarded sites is the only method of addressing a

30 Ben Pycroft Proof of Evidence Appx BP2-K - City Deal : Business and Delivery Plan 2017/20 31 Central Lancashire Core Strategy Appendix D 32 South Ribble Local Plan Appendix 7 https://www.gov.uk/planning-inspectorate 14

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shortfall in supply; that it is a logical approach to providing much needed housing and the options set out in the performance monitoring frameworks in both plans would not assist.

80. I do not agree with this stance. There is no provision in the development plan for releasing safeguarded land as a contingency action. It is not an ‘appropriate management action’ as set out in part (b) of Policy 4. Reading the development plan as a whole, such an action would be contrary to its own policy in relation to safeguarded land. Policy G3 is implicit in that land should remain safeguarded during the plan period or until the plan is reviewed; it does not cite a shortfall in housing supply either within the policy or supporting text.

81. Whether the Council is sufficiently monitoring their plan and taking any of the contingency actions set out in the performance monitoring framework is a matter which is not one for me to deliberate on in this Section 78 appeal. In any case I have already concluded that the Council can demonstrate a five year housing supply.

82. The parties in this appeal have referred to numerous appeal decisions which have been provided to support their respective cases. Whilst I have had due regard to them, appeal decisions on other sites rarely bring identical policies and material considerations. None of the appeal decisions brought to my attention have had a determinative influence on my consideration of the appeal case.

83. I have had regard to the list of agreed conditions and the Section 106 Agreement which makes provision for 30% affordable housing and on-site public open space, and contributions to off-site play space, mobile speed indicator devices, cycle lockers at a local railway station, and travel plan monitoring. I am satisfied that the agreement would accord with the tests set out in the Community Infrastructure Levy Regulations and have had regard to its’ provisions in the consideration of this appeal however the S.106 and conditions do not alter my conclusions in respect of this appeal.

Planning Balance and Conclusion

84. I have identified conflict with Policy G3 of SRLP. Together with Policy 4 of the CLCS, these two policies within the development plan are the most important for determining the appeal. I now assess whether they should be considered to be out-of-date for the purposes of paragraph 11(d) of the Framework.

85. Policy 4 is contained within a plan which is more than five years old, but this strategic policy is not out-of-date simply because of its age. I conclude that it is out-of-date due to the significant change identified above; the publication of the Framework in 2018 which introduced at the standard method, and the significant difference in the housing requirement generated by that calculation for local housing need.

86. It is common ground between the parties that the appeal proposals are contrary to Policy G3 and that it is compliant with paragraph 139 of the Framework, however evidence differs as to whether it is out-of-date for the purposes of paragraph 11(d) of the Framework. I have concluded that the Council can demonstrate a five year supply of deliverable housing sites by virtue of use of the standard method for the housing requirement, therefore Policy G3 is not rendered out-of-date for that reason.

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55 Appeal Decision APP/F2360/W/19/3234070

87. There was some discussion at the inquiry as to whether Policy G3 would be out-of-date for other reasons. I do not agree with the premise that Policy G3 becomes out-of-date purely because of the distributional consequences that would arise across the Central Lancashire HMA as a whole if all three authorities were to apply the standard method. Such a situation is not one which is referred to in the Framework or PPG as rendering this type of policy out-of-date.

88. Moreover, whilst I have given limited weight to the Housing Study and the 2019 draft MOU, the re-distribution which is suggested within the documents is not ‘radical’ as suggested by Mr Fraser. I note that the re-distribution recommended in the Housing Study is based on a reasonable set of criteria including jobs, population, and affordability as well as Green Belt constraints. The recommended share of the housing requirement33 of 27.5% for Chorley, 40% for Preston and 32.5% for South Ribble is not significantly different from the current CS distribution of 31.1 %, 37.8% and 31.1% respectively. Distributional consequences do not weigh heavily in giving me reason to conclude that the policy is out-of-date.

89. This is a small basket of policies for determination of the appeal, nonetheless Policy G3 prevails as the most important, indeed it is the only policy specified in the reasons for refusal relating to the main issues. Taken as a whole, there is conflict with the development plan.

90. Consequently, this is a case in which the tilted balance is not engaged. The most important development plan policy is not out-of-date and the Council is able to demonstrate a five year supply of deliverable housing land.

91. I therefore carry out a standard planning balance in relation to the development proposals before me, with the starting point arising from Section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that applications for planning permission be determined in accordance with the development plan, unless material planning considerations indicate otherwise.

92. The proposals would assist in the Government’s objective of significantly boosting the supply of new homes and as the Appellant is a housebuilder and there are relatively few physical site constraints, they could come forward without unnecessary delay. Another social benefit which weighs in favour of the development is the provision of 30% affordable housing.

93. Economic benefits include employment during construction, additional spending in the area by the new residents, the payment of New Homes Bonus and additional Council Tax revenue. Social and environmental benefits would arise from the provision of public and private amenity space as well as additional landscaping.

94. Public transport and cycle parking contributions are included in the S.106, and conditions require off-site highway improvements. Whilst these may benefit the wider area they are nonetheless necessary to mitigate the increase in traffic arising from the development. Therefore I give little weight to these factors in the overall balance.

33 Central Lancashire Housing Study by Iceni Projects Ltd (October 2019) - Table 4.12 page 24. https://www.gov.uk/planning-inspectorate 16

56 Appeal Decision APP/F2360/W/19/3234070

95. The majority of these benefits are generic and no more than would be expected from any major housing development, and as such they attract limited positive weight. The benefits do not address the fundamental issue of the site’s location within safeguarded land and the harm which would result from the prejudice to potential longer term comprehensive development of the land. Taken together they would not outweigh the conflict with the development plan when taken as a whole.

96. For the reasons given above I conclude that the appeal should be dismissed.

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57 Appeal Decision APP/F2360/W/19/3234070

APPEARANCES

FOR THE LOCAL PLANNING AUTHORITY:

Mr Alan Evans of Counsel instructed by David Whelan, Solicitor for South Ribble Borough Council He called:

Mrs Zoe Harding AssocRTPI Planning Policy Officer, South Ribble Borough Council Mrs Catherine Lewis MRTPI Team Leader, South Ribble Borough Council

FOR THE APPELLANT:

Mr Vincent Fraser QC Instructed by Wainhomes (North West) Ltd

He called:

Mr Ben Pycroft BA (Hons) Dip Director, Emery Planning TP MRTPI Mr Stephen Harris BSc (Hons) Director, Emery Planning MRTPI

INTERESTED PERSONS:

Jean Berry Local Resident and ‘Say No to Chain House Lane’ Elaine Robb Farrington Parish Councillor and local resident Cllr Karen Walton South Ribble Borough Councillor and local resident Alan Pemberton Local resident Michael Collison Local resident David Beaumont Local resident

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58 Appeal Decision APP/F2360/W/19/3234070

ADDITIONAL DOCUMENTS

1 Central Lancashire Housing Study by Iceni (October 2019) 2 Central Lancashire Local Plan Draft Memorandum of Understanding (December 2019) 3 South Ribble Borough Council Cabinet Report 13 November 2019 4 Minutes of South Ribble Borough Council Full Council 25 September 2019 – City Deal Update 5 Minutes of Central Lancashire Strategic Planning Joint Advisory Committee 28 October 2019 6 Update Note by South Ribble Borough Council 7 Statement by Appellant on Revised MoU 8 Erratum to Zoe Harding’s Proof of Evidence 9 Zoe Harding / Ben Pycroft email 3 October 2019 10 Discounts summary table 11 Chorley Planning Committee Report 12 November 2019 – 19/00654/OUTMAJ – Pear Tree Lane, Euxton 12 Decision notice 7 November 2019 – 07/2017/3361/ORM – Test Track, Aston Way, Leyland 13 Section 106 Agreement 7 November 2019 - 07/2017/3361/ORM – Test Track, Aston Way, Leyland 14 Central Lancashire Employment Land Study – Objectively Assessed Needs Update 2019 15 Photographs submitted by Jean Berry on behalf of local residents to show traffic 16 Revised condition 19 (Homes England access condition) 17 South Ribble Borough Council Closing Submissions 18 Appellant’s Closing Submissions 19 Completed Section 106 Agreement dated 15 November 2019

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59 60

Neutral Citation Number: [2020] EWHC 2294 (Admin)

Case No: CO/234/2020 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION PLANNING COURT

Royal Courts of Justice Strand, London, WC2A 2LL

Date: 21/08/2020

Before :

MR JUSTICE DOVE ------Between :

WAINHOMES (NORTH-WEST) LIMITED Claimant - and - SECRETARY OF STATE FOR HOUSING 1st Defendant COMMUNITIES AND LOCAL GOVERNMENT -and- SOUTH RIBBLE BOROUGH COUNCIL 2nd Defendant ------

Mr Vincent Fraser QC (instructed by Eversheds Sutherland) for the Claimant No appearance and no representation for the 1st Defendant Mr Giles Cannock QC and Mr Alan Evans (instructed by David Whelan South Ribble Borough Council) for the 2nd Defendant Hearing date: 17th June 2020 ------Approved Judgment

Judgment Approved by the court for handing down. Double-click to enter the short title

Mr Justice Dove :

Introduction

1. On 4 December 2018 the claimant applied for outline planning permission for up to 100 dwellings with access and associated works on land to the south of Chain House Lane, Whitestake, Preston. That application was refused by the second defendant on 27 June 2019 and the claimant appealed under section 78 of the Town and Country Planning Act 1990 to the first defendant. The first defendant’s duly appointed Inspector, following a public inquiry in November 2019, decided to dismiss the appeal for reasons set out in a decision letter dated 13 December 2019. This is the application pursuant to section 288 of the 1990 Act in relation to that decision.

2. The application is pursued on a number of grounds which are set out below. However, at this stage it is pertinent to note that in relation to ground 5 the first defendant conceded that the Inspector’s decision should be quashed. In particular, the concession is set out in the following terms in a letter from the Government Legal Department dated 17 February 2020:

“This is on the basis that the Secretary of State agrees that the Inspector did not expressly consider the specific point put by the Claimant at paragraphs 80 - 81 Statement of Facts and Grounds. That is, the Inspector did not expressly consider whether the distribution ofthe housing requirement that would result from the application of the Standard Methodology within the Housing Market Area would render policy G3 out of date irrespective of whether the Council could demonstrate a five year supply of housing land. Accordingly, the Secretary of State accepts that the decision should be quashed but only for the reasons set out in paragraphs 80- 81, paragraph 82 (failure to give adequate reasons) and paragraph 83 (in so far as that paragraph relates to a failure to take into account a material consideration) of the Claimant's Statement of Facts and Grounds.”

3. The second defendant supported the decision which was made by the Inspector, and contends that on all grounds the claim should be dismissed.

The facts

4. It is important, in order to understand the issues which arose in the appeal, to set out the policy background and the history of issues relating to planning policy prior to the consideration of the appeal. There were two important issues bearing upon the merits of the appeal. Firstly, the question of whether or not the second defendant could demonstrate a five year housing land supply. The materiality of the requirement to be able to demonstrate a five year housing land supply pursuant to paragraph 11(d) and footnote 7 of the National Planning Policy Framework (“the Framework”) is well known. If a five year housing land supply cannot be demonstrated, then the tilted balance contained in paragraph 11(d) should be applied when determining whether planning permission should be granted. There were no footnote 6 policies engaged in

Judgment Approved by the court for handing down. Double-click to enter the short title

the present case, and therefore if the tilted balance applied, it would mean granting planning permission unless “any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole”.

5. The policy relating to maintaining a deliverable supply of housing land is contained in paragraph 73 of the Framework and those that follow. Of particular relevance in the present case is paragraph 73 and its related footnote 37 which provide as follows:

“73. Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old37.The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:

a) 5% to ensure choice and competition in the market for land; or

b) 10% where the local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan, to account for any fluctuations in the market during that year; or

c) 20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply.

[Footnote] 37. Unless these strategic policies have been reviewed and found not to require updating. Where local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance.”

6. Against the background of this policy material much turned in relation to the merits of the appeal on the question of whether or not a review of the strategic policy for housing had been undertaken pursuant to footnote 37. If a review had been undertaken, and the policies had not been found to require updating, then those strategic policies would have been the basis for the calculation of the five year housing land supply. If a review had not been undertaken then, since the strategic policies for housing were more than five years old, the five year housing land supply would be assessed by reference to local housing need calculated using the standard method prescribed by national Planning Practice Guidance (“the PPG”). These calculations, as set out below, produced very different outcomes.

Judgment Approved by the court for handing down. Double-click to enter the short title

7. It was common ground at the inquiry that the strategic policy providing the housing requirement within the adopted development plan was Policy 4 of the Core Strategy for Central Lancashire. This Core Strategy was prepared and adopted by three adjacent authorities: the second defendant, Preston City Council and Chorley Council, who are all part of a single housing marking area identified as Central Lancashire. Policy 4 provides as follows:

“Policy 4: Housing Delivery

Provide for and manage the delivery of new housing by:

(a) Setting and applying minimum requirements as follows:

- Preston 507 dwellings pa

- South Ribble 417 dwellings pa

- Chorley 417 dwellings pa

With prior under-provision of 702 dwellings also being made up over the remainder of the plan period equating to a total of 22,158 dwellings over the 2010-2016 period.

(b) Keeping under review housing delivery performance on the basis of rolling 3 year construction levels. If, over the latest 3 year review period, any targets relating to housing completions or the use of brownfield are missed by more than minus 20%, the phasing of uncommitted sites will be adjusted as appropriate to achieve a better match and/or other appropriate management actions taken; provided this would not adversely impact on existing housing or markets within or outside the Plan area.

(c) Ensuring there is enough deliverable land suitable for house building capable of providing a continuous forward looking 5 year supply in each district from the start of each annual monitoring period and in locations that are in line with the Policy 1, the brownfield target (of 70% of all new housing) and suitable for developments that will provide the range and mix of house types necessary to meet the requirements of the Plan area.

(d) Ensuring that sufficient housing land is identified for the medium term by identifying in Site Allocations Documents a further supply of specific, developable sites for housing and in the longer term by identifying specific developable sites or broad locations for future growth.”

8. In light of the fact that the Core Strategy had been adopted in 2012, on 27 June 2016 the Central Lancashire Strategic Planning Joint Advisory Committee received a report to advise members of that committee of the appointment of consultants to carry out an assessment of the Full Objectively Assessed Housing Need (“FOAN”) and prepare a Strategic Housing Market Assessment (“SHMA”) for Central Lancashire. The report

Judgment Approved by the court for handing down. Double-click to enter the short title

noted that there was a duty under section 13 of the Planning and Compulsory Purchase Act 2004 for the local planning authorities to keep matters under review which might affect the development of their area or its planning. The object of the exercise which members were being advised about was described in the following terms:

“7. The three Central Lancashire authorities have up to date and National Framework compliant development plans consisting of the Joint Central Lancashire Core Strategy, adopted July 2012, and the three respective site allocations plans, adopted by the respective authorities on varying dates but all in July 2015. The Core Strategy is, therefore, reaching the point where, government guidance suggests that there should be some review as to whether policies need updating.

8. The housing requirement figures in the plan, set out in Policy 4 of the Core Strategy, derive from the now revoked Regional Spatial Strategy figures, which in turn are based upon population and household projection figures dating from 2003. This is becoming an issue in determining planning applications and, particularly, in defending appeals where applicants/appellants are arguing that these figures, even in a recently adopted plan, do not constitute the full, objectively assessed need for market and affordable housing in each of the three Council areas. The further argument is that this is in breach of the requirement of paragraph 47 of the NPPF, which is that local planning authorities use their evidence base to ensure that the Local Plan meets the full objectively assessed need. In such circumstances elsewhere planning inspectors have weighed in favour of the appellant. In addition the High Court has supported the view that the starting point in determining housing requirements is the full, objectively assessed need. … 13. For the reasons set out above this work is necessary and timely. In particular, taking into account the fifth anniversary of the adoption of the Central Lancashire Core Strategy in 2017, the revocation of RSS on which the Core Strategy figures are based and the latest population and household projection figures all point to the need to review this part of the local plan evidence base.”

9. Members were updated in relation to this exercise on 2 March 2017. By this time the consultants had calculated a new FOAN figure, and this required finalisation so that the SHMA could be completed. The report summarised the findings in relation to the FOAN calculation, and the relationship between the FOAN figure that had been calculated and planned housing provision, in the following paragraphs, along with the recommendation that there be a retention of the housing requirement set out in Core Strategy Policy 4(a):

“19. In summary the relationship between the Full Objectively Assessed Need for housing and the planned housing provision, therefore is:

Judgment Approved by the court for handing down. Double-click to enter the short title

 The FOAN is the minimum that needs to be provided. Local Planning Authorities can plan for more housing in their area, for example, to meet economic growth aspirations.

 The FOAN is an evidence figure, not policy.

 The FOAN should be assessed at the Housing Market Area level; Central Lancashire has a level of containment that exceeds the threshold set out in national guidance.

 Apportionment of the FOAN by agreement between local planning authorities within a Housing Market Area, which differs from the figure for each authority, is possible as long as the FOAN for the Housing Market Area is met.

Moving forward pragmatically

20. As indicated above, the FOAN for Central Lancashire is only marginally lower (2%) than the housing requirement figure set out in the Core Strategy. It is, therefore, recommended that the Core Strategy requirements should be retained rather than proceed to a partial review of the Core Strategy at this time.”

10. Also in September 2017 a document was signed by all three of the Central Lancashire authorities, described as the “Joint Memorandum of Understanding and Statement of Cooperation relating to the Provision of Housing Land” (“MOU”). The purpose of the MOU is described in paragraph 3.1 in the following terms:

“3.1 The purpose of this document is to confirm and demonstrate an approach agreed by the Councils concerning the distribution of housing in the Housing Market Area referred to at paragraph 1.3 above. This agreement is informed by the Strategic Housing Market Assessment, August 2017. The Statement sets out the agreed approach to the distribution of housing prior to adoption of a new plan.”

11. At paragraph 4.6 of the MOU the Central Lancashire authorities agreed that it was appropriate to retain the figures set out in Core Strategy Policy 4(a) and continue with the monitoring arrangements under the policy. The substance of the agreement contained in the MOU is set out in the following terms:

“1. Chorley Borough Council, Preston City Council and South Ribble Borough Council agree:

a) To continue until the adoption of a replacement local plan to apply the housing requirements set out in the Joint Central Lancashire Core Strategy Policy 4, i.e.

Judgment Approved by the court for handing down. Double-click to enter the short title

Chorley: 417 dwellings per annum

Preston: 507 dwellings per annum

South Ribble: 417 dwellings per annum.

b) That there is no requirement for each local planning authority to meet its identified individual Objectively Assessed Need for housing where higher in view of this agreement and the longstanding and continuing joint working between the Councils.

c) To continue the existing monitoring arrangements for the Central Lancashire Core Strategy and individual local plans to confirm that the MOU is delivering as intended.

7. Review

7.1 The document will be reviewed no less than every three years and will be reviewed when new evidence that renders this MOU out of date emerges.”

12. It was the claimant’s contention at the public inquiry in relation to the appeal that the events of 2016 and 2017 set out above, taken as a whole, were a review of the adopted strategic policies containing the second defendant’s housing requirement for the purposes of footnote 37, such that the housing land supply should continue to be calculated against the figure contained in Core Strategy Policy 4(a). In support of this contention the claimant also drew attention to a number of additional features in the evidence. Firstly, it was pointed out that the other authorities within the Central Lancashire housing market area accepted that these events amounted to a footnote 37 review, and continued to use the housing requirement contained in Core Strategy Policy 4(a) for the purposes of calculating their five year housing land supply. Secondly, reference was made to the second defendant’s own publication in relation to the housing land position as at 31 March 2019, in which, in the section addressing the strategic requirement, the document noted that the events of 2016 and 2017 “could be considered to have been a review of the policy in terms of footnote 37 of the NPPF”. These features, the claimant contended, supported the view that what had occurred was a footnote 37 review of the housing requirement which had endorsed the continuing validity of the requirement contained in Core Strategy Policy 4(a), and its continued use for the purposes of calculating the five year housing land supply.

13. By contrast, at the outset of the inquiry, the second defendant’s position was that there had not been a footnote 37 review, and that the commissioning of the SHMA was simply, as referred to in the committee documentation, a piece of evidence in relation to housing issues. As in the publication in relation to the housing land supply as of 31 March 2019, reference was made to an appeal decision at Brindle Road, Bamber Bridge, in which the Inspector had stated that he was not convinced that the events of 2016 and 2017 represented a review of the policies. Whilst this was the position at the outset of the inquiry, during the course of cross-examination, the second defendant’s planning witness conceded that, when the material was properly analysed, there had been a review of the policies for the purposes of footnote 37, and therefore the housing land supply calculation should be undertaken on the basis of the housing requirement in Core

Judgment Approved by the court for handing down. Double-click to enter the short title

Strategy Policy 4(a). That this was the case is reflected in the closing submissions made on behalf of the second defendant at the conclusion of the inquiry, in which it was accepted on behalf of the second defendant that there were in reality only three points that could be taken in support of the case that the MOU was not a review in the light of the concessions that had been made. These were, firstly, that there had been no public consultation in the process culminating in the MOU, secondly, there was not a review of the whole of the policy and, thirdly, reliance was placed on the Brindle Road decision.

14. A subsidiary argument made by the second defendant at the inquiry arose as a fall back if it were successfully contended that the MOU and its associated processes did amount to a review. The argument was based on the PPG. The provisions which were particularly relied upon by the second defendant were those concerning how often a plan or its policies should be reviewed. The relevant provision is as follows:

“How often should a plan or policies be reviewed?

To be effective plans need to be kept up-to-date. The National Planning Policy Framework states policies in local plans and spatial development strategies, should be reviewed to assess whether they need updating at least once every 5 years, and should then be updated as necessary.

Under regulation 10A of The Town and Country Planning (Local Planning) (England) Regulations 2012 (as amended) local planning authorities must review local plans, and Statements of Community Involvement at least once every 5 years from their adoption date to ensure that policies remain relevant and effectively address the needs of the local community. Most plans are likely to require updating in whole or in part at least every 5 years. Reviews should be proportionate to the issues in hand. Plans may be found sound conditional upon a plan update in whole or in part within 5 years of the date of adoption. Where a review was undertaken prior to publication of the Framework (27 July 2018) but within the last 5 years, then that plan will continue to constitute the up-to-date plan policies unless there have been significant changes as outlined below.

Paragraph: 062 Reference ID: 61-062-20190315”

Judgment Approved by the court for handing down. Double-click to enter the short title

15. It was contended on behalf of the second defendant that the change between the strategic housing requirement contained in Core Strategy Policy 4(a) and the figure provided by using the standard method for calculating local housing need was a significant change for the purposes of the PPG. On the basis of this contention the second defendant provided a second justification for using the local housing need figure for calculating their five year housing land supply. As has been alluded to above, a very different outcome resulted from the figures available at the inquiry in relation to the five year housing land supply calculation, depending upon whether the housing requirement from Core Strategy Policy 4(a) or the local housing need figure derived using the standard method was used. The claimant and the second defendant’s calculations based on the housing requirement from Core Strategy Policy 4(a) for the five year housing land supply were 3.24 years or 5.96 years respectively, whereas the second defendant’s calculation using the standard method was a five year housing land supply at the start of the inquiry of 17.8 years. This latter figure resulted from the outcome of the use of the standard method which led to the calculation of a housing requirement of 206 dwellings per annum (or 216 with a 5% buffer), as opposed to 417 from Core Strategy Policy 4(a).

16. The second key issue in respect of the application of the tilted balance was the claimant’s contention that Local Plan Policy G3 (the other development plan policy which was most important for determining the appeal) was out of date. Local Plan Policy G3 is contained in the South Ribble Local Plan, which was adopted in July 2015. Local Plan Policy G3 identified five areas of safeguarded land for the purposes of future development. The appeal site was site S3. Safeguarded land, whilst not designated for any specific purpose and not currently required for development, is safeguarded in order to ensure that Green Belt boundaries will not need altering at the end of the plan period to meet longer term development needs, and is a well-recognised planning policy tool. The claimant’s contention was that if the second defendant were to use the standard methodology rather than the housing requirement contained in Core Strategy Policy 4(a), this would lead to a very different distribution of housing requirements between the three Central Lancashire authorities, and would clearly undermine the safeguarded land provisions contained in Local Plan Policy G3 which were predicated upon the housing distribution contained within Core Strategy Policy 4(a) as between each of the three authorities. A redistribution of the housing requirements in accordance with the local housing need figures to be derived for the three Central Lancashire authorities would have significant implications for the Green Belt across Central Lancashire, alongside the availability of safeguarded land and the need for safeguarded land to be released across the housing market area to meet development requirements. In short, therefore, the settled consensus in relation to the distribution of housing requirements contained in Core Strategy Policy 4(a) would be completely fractured by the adoption of the standard method for determining local housing need, such that conclusions reached as to the extent of the need to safeguard land in South Ribble on the basis of the housing requirement in Core Strategy Policy 4(a) could no longer hold, and Local Plan Policy G3 would be out of date.

17. By the time of the close of the inquiry, and following cross examination of the second defendant’s planning witness, it was conceded by the second defendant that for the reasons which have just been rehearsed, if the local housing need figure derived from the standard methodology were to be used that would render Local Plan Policy G3 out of date and trigger the application of the tilted balance. The point was conceded by the

Judgment Approved by the court for handing down. Double-click to enter the short title

second defendant in its closing submissions albeit that it continued to be contended that significant weight should be attributed to any harm to the policy which it was argued must be found as a consequence of the conflict of the development proposals with that policy.

18. The key issue in relation to whether or not there had been a footnote 37 review and, if there had, there had been a significant change so as to nonetheless indicate that the standard method figure for local housing need should be applied were addressed by the Inspector in the following paragraphs:

“14. In 2016-17 a joint Strategic Housing Market Assessment (SHMA) was produced which identified an Objectively Assessed Need (OAN) for the three Central Lancashire authorities in the HMA. This totals of 1,184 dwellings pa, with 440 dwellings pa for South Ribble. The three authorities subsequently published a Memorandum of Understanding (MOU) which set out that the CS housing requirement figures in Policy 4 should be retained for a number of reasons. The dispute between the parties in relation to the housing requirement principally revolves around whether the publication of the MOU in 2017 constituted a review for the purposes of footnote 37 to paragraph 73 of the Framework.

15. Mrs Harding suggested that this could not constitute a review because there was no public consultation on the 2017 MOU. The MOU is not a development plan policy document, and I am not aware of any guidelines for its production, consultation and adoption. Even so, I would agree that consultation would be a proportionate ingredient of a review, and that it would assist in ensuring that such a document is fit for purpose. 16. There is limited evidence before me to support this and Mrs Harding’s further contention that the whole of Policy 4 was not reviewed; i.e. the SHMA only relates to part (a) in relation to the figures. Nonetheless, it does provide me with further doubt about whether the MOU and SHMA process leading up to it constituted a full review. 17. I acknowledge the Appellant’s reference to page 21 of the 2019 HLPS which, when referring to the MOU, states ‘This could be considered to have been a review of the policy in terms of footnote 37 of the NPPF’. To my mind the word ‘could’ also raises an element of doubt, and highlights that the situation is by no means clear cut. Mr Pycroft asserted that whilst the MOU alone may not have been a review of CS Policy 4 it was the outcome of the production of the SHMA, and the entire process constituted a review. I do not agree for the following reasons. 18. The SHMA is not a review of policy but part of the evidence base for a future review of the plan. I have regard to paragraph 1.2 of the SHMA which states: ‘The SHMA does not set housing targets. It provides an assessment of the need for housing across the functional Housing Market Area (HMA), making no judgements regarding future policy decisions which the Councils may take’.

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19. Mr Pycroft’s evidence also refers to a 2016 report to the Central Lancashire Strategic Planning Joint Advisory Committee (JAC). To my mind the paragraphs he refers to simply inform members of the JAC that the fifth anniversary of the CS is approaching, and that Government guidance requires plans and policies to be reviewed. On reading the report as a whole, it also informs members that the main purpose of the SHMA is to ensure the Councils had a full objectively assessed need (FOAN) in accordance with paragraph 47 of the former 2012 Framework. This is also evident in a subsequent report to the JAC in March 2017 which sets out that the FOAN is an evidence figure, not policy. Indeed, I note that CS Policy 4 is not specifically mentioned in either of these reports and references to ‘review’ are in the context of a future review of the CS. 20. I have also had regard to the Brindle Road decision where the Inspector was not convinced that the MOU was a review, although I note the basis on which these comments were made as highlighted by the Appellant. In view of the above, and the inconclusive evidence supplied by the Council regarding lack of consultation and review of the whole policy, I do not consider that the SHMA process constituted a review of Policy 4. 21. I acknowledge that both Preston and Chorley currently use the CS housing requirement in decision making and in their most recent Housing Land Position statements. Whilst I do not have the benefit of direct evidence from Preston and Chorley Councils, I have had regard to the evidence produced by Mr Pycroft and it seems to me that there are various other reasons, not solely relating to the MOU, that they continue to use the CS figures and consider that a review of Policy 4 has taken place. 22. The Preston City Council press release does not specifically refer to the MOU, instead it refers to the costs associated with defending two recent appeal decisions in their area which concluded that Preston did not have a five year supply of housing. I cannot make any conclusions on this as those decisions are not in the evidence before me. Preston’s latest housing land position statement (HLPS) also refers to those appeal decisions (at paragraph 1.6), and draws attention to the Preston Local Plan examination where it was agreed that that there was no requirement to reconsider the Objectively Assessed Need. Mr Pycroft pointed out paragraph 1.9 of the HLPS in relation to the MOU. However, to my mind this suggests uncertainty given the punctuation of ‘review’ (in single quotation marks). 23. Preston’s HLPS goes on to explain at paragraph 1.10 that its’ OAN resulting from the SHMA is lower than the CS requirement, and it seems to me that this was a factor in the aforementioned appeal decisions. This contrasts to the situation in South Ribble, where the OAN was calculated to be very similar (and slightly higher) to the existing CS requirement. 24. Chorley’s 2019 housing supply statement also applies the CS requirement figure but does not refer to the MOU in doing so. Mr Pycroft’s evidence in relation to a recent appeal (Carrington Road) gives further explanation; their reasoning for continuing to apply the CS requirement

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was that it was reviewed as part of the examination of the Chorley Local Plan in 2015. I also have regard to a very recent Chorley planning committee report in relation to a resubmission of a previously dismissed appeal at Pear Tree Lane, where Chorley set out their reasons as to why they consider CS Policy 4 is not out-of-date. 25. It seems to me that the reasoning taken by Chorley and Preston for their use of the CS figure is specific to those Councils and does not necessarily directly apply to the South Ribble situation. In view of this, I am not satisfied that the evidence demonstrates that they are applying the CS figure for the reason that the MOU (and SHMA process) constituted a review. 26. It has also been put to me by the Council that the 2017 MOU has been overtaken by events, i.e. a ‘significant change’ has taken place. Paragraph 33 of the Framework requires local authorities to update relevant strategic policies at least once every five years if their applicable local housing need figure has changed significantly. ‘Significantly’ is open to interpretation; and moreover the Framework does not specify whether such a change in the figure is positive or negative. 27. Paragraph 062 of the Planning Practice Guidance (PPG) on plan making gives guidance on review of policies, stating that where a review was undertaken prior to publication of the Framework in 2018 but within the last 5 years, then that plan will continue to constitute the up-to-date plan policies unless there have been significant changes in circumstances. There is a difference in interpretation of the guidance between the main parties. 28. The 2017 MOU was produced prior to the publication of the 2018 Framework. The PPG is not explicit in that it only refers to a significant change as being an existing figure that is significantly below the number generated using the standard method. I agree with the Council that the wording of paragraph 062 does not necessarily discount a situation where the existing plan figure is significantly above the number generated using the standard method, as is the case in South Ribble. This therefore adds little to the Appellants argument that a review of the CS has taken place. 29. The 2017 MOU itself sets out review arrangements at section 7; no less than every three years and when new evidence that renders the MOU out-of-date has emerged. Such a review of the MOU is currently taking place. A 2019 Draft MOU relating to the provision and distribution of housing land has been recently produced by the Central Lancashire authorities. This follows a Housing Study which has informed a proposed interim position in advance of the adoption of the new Local Plan for Central Lancashire. … 33. I am mindful that if Preston and Chorley applied the standard method (not the draft re-distributed figure) to their housing requirement now, Preston would be able to demonstrate a five year supply and Chorley would not.

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This inconsistency in the way the three Central Lancashire Authorities are currently making decisions relating to housing (together with the age of the CS, current consultation on Issues and Options for a new Central Lancashire Local Plan, and the introduction of the standard method) have plainly contributed to current events where the three authorities are consulting on a revised MOU to provide more clarity in decision making. 34. I am also conscious that my conclusions in respect of the housing supply requirement for South Ribble may have consequences for decision making by the neighbouring authorities. Convincing arguments have been made by the Appellants for retaining the current CS housing requirement in view of the redistribution which may potentially result from this, but undue reliance seems to be placed on what the two other authorities are currently doing and how the use of the Standard Method will affect them. This is a matter for their own decision making and for the emerging Central Lancashire Local Plan in carrying out a full review of housing policies. … 36. The Housing Study, albeit not a final report, acknowledges in its introduction that the previously agreed MOU needs to be revisited, and that a robust basis for working to agree an updated level of housing need and its distribution across the HMA is required through an updated MOU. I do not make any attempt to predicate the outcome of the final Housing Study and the current consultation on the draft 2019 MOU. However it is clear to me that the direction of travel by all three authorities is towards the standard method and a re-distribution of the housing requirement based on a range of factors including population, workforce and jobs distribution and constraints (including Green Belt). 37. Having regard to paragraphs 33, 73 (and footnote 37) and 212-213 of the NPPF, and the PPG paragraph 062, I conclude that the figure within Policy 4 of 417 dwellings per annum is out-of-date on several counts : i) the strategic policies are over 5 years old; ii) my conclusions that the 2017 MOU (and SHMA leading up to it) did not properly constitute a review; and iii) the ‘significant change’ resulting from the introduction of the standard method in the 2018 Framework and the Council’s significantly lower figure arising from the standard method calculation. Additionally, the MOU itself requires review by September 2020; indeed a new version is currently undergoing consultation.”

19. The Inspector addressed the issues in relation to whether or not Local Plan Policy G3 was out of date as follows:

“Planning Balance and Conclusion

84. I have identified conflict with Policy G3 of SRLP. Together with Policy 4 of the CLCS, these two policies within the development plan are the most important for determining the appeal. I now assess whether they should be considered to be out- of-date for the purposes of paragraph 11(d) of the Framework.

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88. Moreover, whilst I have given limited weight to the Housing Study and the 2019 draft MOU, the re-distribution which is suggested within the documents is not ‘radical’ as suggested by Mr Fraser. I note that the re-distribution recommended in the Housing Study is based on a reasonable set of criteria including jobs, population, and affordability as well as Green Belt constraints. The recommended share of the housing requirement of 27.5% for Chorley, 40% for Preston and 32.5% for South Ribble is not significantly different from the current CS distribution of 31.1 %, 37.8% and 31.1% respectively. Distributional consequences do not weigh heavily in giving me reason to conclude that the policy is out-of-date.

90. Consequently, this is a case in which the tilted balance is not engaged. The most important development plan policy is not out- of-date and the Council is able to demonstrate a five year supply of deliverable housing land.”

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20. In the light of these conclusions the Inspector undertook what she described as a standard planning balance, starting with the provisions of section 38(6) of the 2004 Act and she concluded that the appeal should be dismissed.

The law

21. The principles which are relevant to the determination of this challenge are both common place and uncontroversial. The decision to grant planning permission is governed by section 70 of the 1990 Act and section 38(6) of the 2004 Act. The decision is to be made in accordance with the development plan unless material considerations indicate otherwise. Amongst the material considerations which may very well be operative in a decision, and were operative in the present case, are the provisions of national government policy contained in the Framework. If planning permission is refused, and the disappointed developer appeals under section 78 of the 1990 Act to the first defendant, the first defendant enjoys all of the same powers, in essence, that were enjoyed by the local planning authority. Frequently, as here, the first defendant’s powers in relation to an appeal under section 78 of the 1990 Act will be delegated to a planning inspector.

22. In St Modwen Developments Limited v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643 Lindblom LJ set out the familiar principles which are to be applied in determining an application for statutory review of an appeal decision under section 288 of the 1990 Act in the following terms in paragraphs 6 and 7 of his judgment:

“6. In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the “seven familiar principles” that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are:

“(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the “principal important controversial issues”. An inspector’s reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on

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relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B-G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or no weight at all” (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector’s decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6).

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(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. in Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).”

7. Both the Supreme Court and the Court of Appeal have, in recent cases, emphasized the limits to the court’s role in construing planning policy (see the judgment of Lord Carnwath in Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] UKSC 37, at paragraphs 22 to 26, and my judgment in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, at paragraph 41). More broadly, though in the same vein, this court has cautioned against the dangers of excessive legalism infecting the planning system – a warning I think we must now repeat in this appeal (see my judgment in Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, at paragraph 50). There is no place in challenges to planning decisions for the kind of hypercritical scrutiny that this court has always rejected – whether of decision letters of the Secretary of State and his inspectors or of planning officers’ reports to committee. The conclusions in an inspector’s report or decision letter, or in an officer’s report, should not be laboriously dissected in an effort to find fault (see my judgment in Mansell, at paragraphs 41 and 42, and the judgment of the Chancellor of the High Court, at paragraph 63).”

23. In relation to contentions as to illegality arising in a decision as a result of a mistake in fact, the leading case is E v Secretary of State for the Home Department [2004] EWCA Civ 49. At paragraph 66 of his judgment, Carnwath LJ (as he then was) concluded when giving the judgment of the court that it was appropriate to identify a species of error of law arising from a mistake of fact, and that the jurisdiction arose when the criteria which he identified were fulfilled as follows:

“66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence

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must have been “established” in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.”

The claimant’s grounds and the parties’ submissions

24. The claimant’s ground 1 is the contention that the Inspector fell into error in concluding on the basis of the material before her, and which has been set out above, that the MOU and the processes which proceeded it did not amount to a review under footnote 37 of the framework. Mr Vincent Fraser QC, who appears on behalf of the claimant, submits that the Inspector, firstly, relied upon a matter which was plainly an error of fact when she relied in her reasons in paragraph 19 of the decision letter on the suggestion that Core Strategy Policy 4 was not specifically mentioned in either of the committee reports from June 2016 and March 2017. Policy 4 is directly referred to in paragraph 8 of the June 2016 report. Furthermore, it was plain from that report, the subsequent report of March 2017 and the MOU (which again specifically referred to Core Strategy Policy 4), that the entire exercise was referenced to Core Strategy Policy 4.

25. Mr Fraser also submits that the Inspector’s reasoning was unintelligible and inadequate. He relies upon the contention that the Inspector’s cross-reference to the mention of the FOAN figure being an evidence figure, rather than policy, in the 2017 report, relied upon in paragraph 19 of the decision letter, was a point of no consequence, since any review would have to be supported by evidence in any event. In the light of the consensus amongst the other Central Lancashire authorities, and indeed the consensus at the inquiry, that what had happened was a review pursuant to footnote 37, Mr Fraser submits that it was simply not open to the Inspector to reach any other conclusion but that it was such a review.

26. On behalf of the second defendant, Mr Giles Cannock QC submits that the terms of footnote 37 do not explain what might amount to a review, nor is it a matter touched upon by the PPG other than to say that a review should be proportionate to the issues that it is considering. Thus, he submits that the Inspector had a very broad area of discretionary judgment in order to reach her conclusions as to whether or not a review had in fact occurred. Mr Cannock submits that, read consistently with the established principles for considering decisions of this kind, the Inspector’s decision as a matter of planning judgment was founded upon five reasons which justified her conclusion that a review had not occurred which are set out below. He accepted that there had been a factual error in relation to the suggestion that there was no specific mention in the committee report of Core Strategy Policy 4. His response to Mr Fraser’s submission was that this was not a point of any material significance and this reference was simply relied upon as supportive of other points raised in paragraph 19.

27. The five reasons identified by Mr Cannock are as follows. Firstly, he submits that the Inspector’s report was clear, when in paragraph 20 it referred to “review of the whole policy”, that the Inspector was reaching a finding that Core Strategy Policy 4 had not been reviewed across the board or in its entirety, and therefore this included no review of Core Strategy Policy 4(a). When the Inspector referred to “in view of the above” in paragraph 20 of the decision letter, this was a reference back to all of the preceding reasoning in paragraphs 15-19. In response to this contention Mr Fraser draws attention

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to the reference in paragraph 16 of the decision letter to the second defendant’s witness’s contention that “the whole of policy 4 was not reviewed”, and further in paragraph 16 to whether or not the MOU and SHMA process “constituted a full review”. He submits that the Inspector’s distinction between a full review of Core Strategy Policy 4 and a partial review of Core Strategy Policy 4(a) was clearly a misapplication of the Framework’s policy in paragraph 73, which was purely concerned with housing requirements, and not the other elements of Policy 4 related to monitoring housing delivery or site allocations. On this basis, firstly, the second defendant’s witness had been correct to concede that there had been a review of Core Strategy Policy 4(a) and, secondly, the Inspector failed to reach any conclusion as to whether or not Core Strategy Policy 4(a) had been reviewed, or provide any reasons for any finding that it had not.

28. The second matter that Mr Cannock relies upon in support of the conclusion that the Inspector provided appropriate reasoning for her decision that there had not been a review pursuant to footnote 37 was her reference to the SHMA being a document for a future review of the Core Strategy. There is, therefore, no reason for suggesting that the SHMA itself supported the conclusion that there had been a review. In response to this contention Mr Fraser observes that the documentation contained in the committee reports made clear that the SHMA was commissioned to address the question of whether or not the housing requirement in Core Strategy Policy 4(a) might remain reliable, and not for some future unspecified review of the plan. The quote from the SHMA set out in paragraph 18 of the decision is incapable of supporting the Inspector’s conclusion, since it simply referred to the fact that the SHMA did not make any judgment in relation to future policy.

29. The third matter relied upon by Mr Cannock is the absence of mention in the 2016 or 2017 committee reports of Core Strategy Policy 4(a). That was something which the Inspector was entitled to rely upon in passing as supporting her conclusions. As set out above, Mr Fraser’s response to this is to draw attention to this reasoning as in fact an operative error of fact which amounts in and of itself to an error of law. Fourthly, Mr Cannock relies upon the Brindle Road Inspector and the conclusions that he reached. In response to this, Mr Fraser replies firstly, that the reasoning does not make clear at all why the Brindle Road Inspector’s decision supported the Inspector’s view, particularly bearing in mind secondly, the Brindle Road Inspector only addressed the MOU and not the process leading up to it.

30. Finally, Mr Cannock points out that the Inspector relied upon absence of consultation in relation to her conclusion that there had not been a footnote 37 review. He submits that the Inspector was entitled to take account of the fact that consultation would have been a proportionate ingredient of a review and assist in judging whether it was fit for purpose (see paragraph 15 of the decision letter). Mr Fraser responds by noting that there is no requirement for consultation in either law or policy and that this ingredient of the Inspector’s reasoning is therefore quite unsustainable.

31. Ground 2 is focused on the sentence within paragraph 21 of the decision letter where the Inspector, having acknowledged that the other two authorities within the Central Lancashire area, Preston City Council and Chorley Council, were using the Core Strategy housing requirement from its Policy 4(a), concluded that “it seems to me that there are various other reasons, not solely related to the MOU, that they continue to use the CS figures and consider that a review of Policy 4 has taken place”. Mr Fraser

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submits that the Inspector’s reasoning in this connection is quite unclear. This clause from paragraph 21 of the decision letter suggests that the MOU was in fact a review, and the fact that there may be other reasons to apply the Core Strategy figures in the other authority areas of Central Lancashire is neither here nor there. Furthermore, consistently both with the fact that Core Strategy Policy 4(a) applied to all three authorities, and consistent with the clear policy in paragraph 73 of the Framework, the policy and the joint committee process and MOU cannot properly be regarded as a review in two authorities but not a review in the third. Logically, this is a matter which ought to have been considered prior to the Inspector forming her conclusions in relation to whether there had been a review in paragraphs 16-20.

32. In response, Mr Cannock submits that whilst paragraph 21 of the decision letter may be infelicitously phrased, it has to be read together with the balance of the paragraphs to which it relates, and in particular paragraph 25 of the decision letter where, having rehearsed the evidence in relation to Preston and Chorley, the Inspector clearly concluded that she was not satisfied that they were applying the Core Strategy figure on the basis that the MOU and SHMA process constituted a footnote 37 review.

33. Ground 3 relates to the Inspector’s conclusions in paragraphs 26-28 in relation to whether or not a significant change had occurred in the context of the paragraph of the PPG as set out above. Mr Fraser contends that the Inspector was guilty of a clear misinterpretation of the PPG when she concluded that it covered a situation where an existing plan figure was found to be significantly above the housing requirement generated using the standard method to identify local housing need. Mr Fraser submits that this reading renders the PPG pointless, on the basis that if a significant change is to be said to have occurred when the development plan figure is significantly above or below the standard method figure, then the development plan figure would only be used if there was no material difference between it and the standard method figure, and therefore the PPG would be purposeless. Moreover, Mr Fraser submits that the PPG is clear and consistent with the Framework in its approach to only regarding there having been a significant change when the development plan figure is significantly below that generated using the standard method, bearing in mind that the Framework seeks to boost significantly the availability of housing land, and ensure that all housing need is planned for as quickly as reasonably possible. In response, Mr Cannock submits that the Inspector’s interpretation is consistent with a sensible approach to the PPG reflecting that the judgment of whether or not there has been a significant change in particular circumstances is one regularly undertaken in the application of planning policy. The Inspector’s interpretation was a sensible and reasonable interpretation of the PPG’s guidance.

34. Ground 4 focuses upon the Inspector’s conclusions in paragraph 34 of the decision letter, in which she accepted that “convincing arguments” had been made by the claimant for retaining the Core Strategy requirement in view of the redistribution which might potentially result from the use of the standard method, and her conclusion that these consequences were a matter for the other authorities’ decision making and the emerging Central Lancashire Local Plan. Mr Fraser complains that the Inspector, having found the arguments convincing, failed to follow them and, further, failed to appreciate that any redistribution of housing within the housing market area required a collective decision of all three authorities, and could not be done by individual decisions of the authorities acting alone. Mr Cannock submits in reply that the claimant’s

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submission focuses illegitimately on a single phrase in a single sentence within the decision letter. Further it fails to place that phrase in context and have regard to the surrounding reasoning. The Inspector clearly explained that whilst she may have found the Claimant’s case convincing there were other arguments and considerations which were explained in the decision letter, in particular at paragraph 36, as to why the claimant’s arguments could not prevail.

35. Ground 5 relates to the claimant’s contentions, ultimately accepted by the second defendant’s planning witness at the public inquiry, that as a consequence of the use of the standard method the distributional consequences which would arise across the Central Lancashire housing market areas would render Local Plan Policy G3 out of date. Mr Fraser submits that the Inspector’s reasons in relation to her conclusion that Local Plan Policy G3 was not out of date are unclear and incoherent. Firstly, he notes the Inspector’s finding that Local Plan Policy G3 of the South Ribble Local Plan and Core Strategy Policy 4 were the two most important policies for determining the appeal, and those which paragraph 11(d) of the Framework required the Inspector to assess as to whether or not they were out of date. Secondly, he notes that the Inspector’s reasons for concluding that Local Plan Policy G3 was not out of date were, firstly, that the distributional consequences relied upon were not a situation referred to in the framework or PPG as rendering this type of policy out of date. This he submits is illegitimate and unclear: the Framework deliberately does not seek to identify particular circumstances when a policy may be out of date (save for the circumstances specified in footnote 7 related to the five year housing land supply).

36. Thirdly, the Inspector’s second reason for rejecting this contention was articulated in paragraph 88 of the decision letter. As set out above, the claimant’s argument was based upon the application of the standard method to each of the authorities and the distribution of housing that created. The split in relation to local housing need between the authorities was Preston 23.3%, Chorley 56.1% and South Ribble 20.6%, which Mr Fraser submits was radically different from the Core Strategy Policy 4(a) distribution of Preston 37.8%, Chorley 31.1%, and South Ribble 31.1%. Mr Fraser submits that the Inspector’s response to this argument did not engage with its substance, and her reasons did not begin to explain how she dealt with this key point. She responded to it by referring to the redistribution recommended in the Housing Study, and in doing so compared apples with oranges, and failed to engage at all in the claimant’s argument, based as it was upon the factual outcome of the application of the standard method to these individual authorities. Thus, he submits that the Inspector’s reasons failed to grapple with the claimant’s argument and provide an answer to it. In response to these contentions Mr Cannock submits that the claimant’s submissions are an attack on the Inspector’s planning judgment, and that she was entitled to look at the standard method figures as proposed to be redistributed in the housing study. She was not obliged to consider the distributional consequences of un-redistributed standard method figures, bearing in mind that work was in progress to produce answers to the distributional consequences.

Submissions and conclusions

37. It is convenient to start with the ground of challenge which is conceded by the first defendant. This is ground 5, related to the conclusion that Local Plan Policy G3 was not out of date. In my view there is conspicuous merit in this ground, on the basis that the Inspector’s reasoning failed to deal with the claimant’s argument or explain her

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conclusions in relation to it. The argument which was made by the claimant was related to the consequences of deploying the standard method’s measurement of local housing need as a result of the earlier conclusions which the Inspector had reached. The figures set out above identify a stark difference in the housing distribution using the local housing need housing requirement, as compared to the distribution contained within Core Strategy Policy 4(a). The Inspector simply failed to provide an answer to the point raised in relation to the adoption of the standard method and its consequences for the distribution of housing contained within that policy which, in turn, underpinned the quantity and distribution of safeguarded land reflected in Local Plan Policy G3. It was not an answer to Mr Fraser’s point at the inquiry (namely, that the use of the local housing need requirement figures derived from the standard method presented a radically different housing distribution to that in the Core Strategy) to compare the distribution using the standard method with a Housing Study which contained housing figures which had been adjusted by an as yet inchoate emerging policy. As Mr Fraser submits, her approach involved a comparison which was not apt and failed to engage with the direct consequences for Local Plan Policy G3 of her earlier conclusion that the standard method for deriving the housing requirement should be used for the purposes of her decision. Indeed, the Inspector’s reliance in her reasoning on a future exercise of policy making, involving review and a fresh exercise of redistribution, reinforced the point that Local Plan Policy G3 was in fact out of date and requiring review at the time of making the present decision if the housing requirement derived from the standard method was to be deployed. Further, her reference to this situation as not being one referred to in the Framework or PPG as rendering this type of policy out of date does nothing to explain either why the claimant’s detailed point in relation to the impact on the current distribution of housing of use of the standard method did not render Local Plan Policy G3 out of date.

38. I am, therefore, satisfied that the Inspector’s reasons were inadequate in that they failed to grapple with and explain adequately her answer to the point raised in relation to the consequences for the distribution of housing set out in the Core Strategy for each of the Central Lancashire authorities, upon which Local Plan Policy G3 depended, arising from her adoption of the housing requirement derived from the standard method for the purpose of taking her decision. The concession made by the first defendant was appropriate, and the claimant must succeed on ground 5.

39. I turn then to grounds 1, 2 and 3, noting Mr Cannock’s undisputed proposition that the claimant must win on either grounds 1 and/or 2 as well as ground 3 in order to succeed, bearing in mind that the points raised under ground 3 are in the alternative or a fallback, and on the basis that a footnote 37 review had in fact taken place as the claimant contends. Dealing firstly with ground 1, in my judgment there is substance in the claimant’s complaint that the Inspector fell into error in suggesting that Core Strategy Policy 4(a) was not mentioned in either of the committee reports. It is conceded that this was an error. The concession is rightly made, since to my mind it is plain that on any reading of the committee reports in June 2016 and March 2017 the central focus of the discussions taking place, and the exercise underway, was an examination of whether or not the housing requirement in Core Strategy Policy 4(a) remained valid. The point which she made is an error and, as a consequence, incapable of supporting her conclusions, thereby rendering her reasoning unclear and unlawful. In so far as this is relied upon as an actionable error of fact, it satisfies in my judgment the requirements set out in the case of E, since it was an error in relation to an established and verified

Judgment Approved by the court for handing down. Double-click to enter the short title

fact which was not caused by either party at the inquiry. I note that in identifying the reasons it is said that the Inspector had for forming the conclusion that there had not been a review, the second defendant relies upon her reference to Core Strategy Policy 4 being absent from the committee reports, and it is clear to me that this reference was a part of the reasoning she relied upon in reaching her conclusions in relation to the review. I am unable to accept the second defendant’s suggestion that this is merely a matter raised in passing: it was part of her reasoning.

40. It follows from this that one of the strands of reasoning said by the second defendant to support the Inspector’s conclusions has been found to be legally flawed. Whilst I am prepared to accept the contentions made by the second defendant in relation to the Inspector’s reliance upon the absence of consultation, the reference to the Brindle Road Inspector and the fact that the SHMA was not itself a review of the policy as all being matters potentially relevant to her consideration of whether or not there had been a footnote 37 review, I have found her reasons in paragraph 20 (flowing from paragraph 16 of the decision letter) in relation to reliance on the conclusion that there was not a review of the whole of Core Strategy Policy 4 problematic. It is clear that footnote 37, related as it is to paragraph 73 of the Framework, relates to strategic polices containing a housing requirement. In this case the strategic policy containing the housing requirement is Core Strategy Policy 4(a), and not the other elements of the policy which relate to additional ancillary matters. The apparent reliance on Core Strategy Policy 4 not having been reviewed as a whole is further complicated by Mr Fraser’s pertinent submission that in fact the MOU contained agreement not simply in relation to policy 4(a), but also in relation to those other ancillary matters. In short, it is difficult to understand, and the Inspector failed to explain, firstly, why the whole of Core Strategy Policy 4 had to be reviewed for the exercise to constitute a review for the purposes of footnote 37 and, secondly, why the MOU did not constitute that review of the whole policy bearing in mind the contents of the MOU. For all of these reasons, and whilst I have not concluded that all of the claimant’s submissions have substance, I have concluded that on the basis of the claimant’s arguments which I have accepted, they must succeed in respect of ground 1.

41. Turning to ground 2, in my view Mr Cannock is correct when he suggests that ground 2 depends upon a highly forensic examination of only a part of the Inspector’s overall reasoning in relation to the position of the other neighbouring authorities within the Central Lancashire housing market area. Paragraph 21 of the decision letter could undoubtedly have been more precisely worded. However, the reference to “not solely related to the MOU”, and any lack of clarity which that gives rise to, has to be put in the context of the balance of the reasoning on this issue in paragraphs 22-25 which are, in my judgment, clear as to why the Inspector formed a conclusion that she was not satisfied that the evidence demonstrated the other authorities were applying the Core Strategy Policy 4(a) figure on the basis that the MOU, and that which proceeded it, constituted a footnote 37 review. I am not satisfied, therefore, that there is substance in ground 2.

42. Turning to ground 3, it needs to be borne in mind that the passage from the PPG in relation to the need to review plans when there has been a significant change arose in the context of the arguments about whether or not Core Strategy Policy 4(a) was out of date and, in particular, was relied upon in paragraph 37 of the decision as one of the reasons for the Inspector’s conclusion that Core Strategy Policy 4(a) was out of date.

Judgment Approved by the court for handing down. Double-click to enter the short title

Whilst it is fair to observe that the only significant change specifically instanced in the PPG is where a housing requirement is found to be significantly below the number generated using the standard method, in my view this passage of the PPG needs to be read purposefully and as a whole. The third paragraph of the passage of guidance makes clear that a plan will continue to be treated as up to date “unless there have been significant changes as outlined below”. The following paragraph provides some examples where there may have been significant change but, as Mr Cannock points out, the question of whether or not there has been a significant change warranting a review of the plan on the basis that it is not up to date is not curtailed or circumscribed by the contents of the final paragraph.

43. There may be many material changes in the planning circumstances of a local authority’s area which would properly render their existing plan policies out of date and in need of whole or partial review. I am unable to accept Mr Fraser’s submission that it is impermissible to regard the emergence of a local housing need figure which is greatly reduced from that in an extant development plan policy as having the potential to amount to a significant change. Whilst he is entitled to point to the wider national planning policy context of boosting significantly the supply of housing land, as Mr Cannock points out in his submissions, the use of the standard method to derive local housing need is part and parcel of the Framework’s policies to achieve that objective. Moreover, the question of whether or not any change in circumstances is significant is one which has to be taken on the basis of not only the salient facts of the case, but also other national and local planning policy considerations which may be involved. In short, in my view, the language of the PPG and its proper interpretation did not constrain the Inspector and preclude her from reaching the conclusion that she did, namely that the significant difference between the housing requirement in Core Strategy Policy 4(a) and that generated by the standard method was capable of amounting to a significant change rendering Core Strategy Policy 4(a) out of date. That was a planning judgment which she was entitled to reach and was properly reasoned in her conclusions.

44. Finally, ground 4 is the claimant’s contention in relation to the Inspector’s observation that the claimant made “convincing arguments” for retaining the current Core Strategy housing requirements in view of the potential consequences in respect of redistribution arising from deploying the standard method. This point arises in the context of the Inspector’s consideration of whether or not Core Strategy Policy 4(a) is out of date or should be retained as the basis of the housing requirement for the purposes of calculating the five year housing land supply. I am unimpressed by the argument that simply because the Inspector described the claimant’s arguments as convincing she was then obliged to accept them as a sound and proper reason for continuing to use Core Strategy Policy 4(a)’s housing requirements. Once again, the Inspector’s conclusions need to be read as a whole in relation to this point. It is to my mind clear that the use of the phrase “convincing arguments” was perhaps an infelicitous use of language, and what the Inspector was describing was her view that the arguments were persuasive or not without force. It is, however, clear, in particular in her conclusions in paragraph 36 of the decision letter, that those arguments are not dispositive of the question of whether or not the housing requirement in Core Strategy Policy 4(a) should continue to be used, and whether or not it remains up to date. I do not consider, therefore, that there is any substance in the claimant’s ground 4.

Judgment Approved by the court for handing down. Double-click to enter the short title

45. Drawing the threads together it is clear to me that this claim must be allowed, and the decision quashed, in relation to the claimant’s contentions in ground 5 for the reasons I have given. I am satisfied that in ground 1, the Inspector’s reasons for concluding that the MOU and the SHMA process leading up to it did not properly constitute a footnote 37 review are not legally adequate, and that her conclusions are affected by illegality in the form of an error of fact. I am satisfied that the conclusion the Inspector reached in paragraph 37(iii), that there had been a significant change pursuant to the PPG arising from the introduction of the standard method, was a planning judgment reasonably open to her based upon a correct interpretation of the PPG (albeit other conclusions might reasonably be reached by other Inspectors), and therefore she was entitled to conclude that Core Strategy Policy 4(a) was out of date. I do not consider that there is any substance in grounds 2 and 4 of the claimant’s case for the reasons I have set out above. Ultimately, therefore, the decision has to be quashed in relation to ground 5, and will need to be redetermined in the light of the conclusions set out above and a re- examination of the planning merits pertaining at the time of redeterminationn.

85 86

Appeal 3234070 Statement of Common Ground

Appeal following refusal of outline planning application 07/2018/9316/OUT for up to 100 dwellings – Chain House Lane, Whitestake for Wainhomes (North West) Ltd

Appeal Ref APP/F2360/W/19/3234070 LPA ref: 07/2018/9316/OUT

Project : 18-294 Site address : Chain House Lane, New Longton, Preston, PR4 Client : Wainhomes (North West) Ltd

Date : 25 July 2019

Contents:

1. Introduction 1 2. Appeal proposal 3 3. Site and area description 4 4. Planning policy 6 5. Agreed matters 9 6. Key Issues 10 7. Draft Heads of Terms 11 8. Appendix 1: Responses from Statutory Consultees – Summary 12

89 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

1. Introduction

1.1 This Statement of Common Ground has been prepared and agreed by the Appellant and South Ribble Council. This is an updated Statement of Common Ground for the redetermination of the appeal.

1.2 This statement is structured as follows:-

2) The Appeal Proposals 3) Site Description 4) Planning Policy 5) Agreed Matters 6) Key Issues 7) Draft Heads of Terms 8) Responses from Statutory Consultees - Summary

Key Changes

High Court Decision

1.3 The appeal decision dated 13th December 2019 was the subject of a legal challenge, which was lodged by the Appellant in January 2020. In February 2020, the Secretary of State agreed that the appeal decision should be quashed as it was legally flawed. However, South Ribble Council subsequently resolved to defend the Secretary of State’s decision and a Court hearing took place on 17th June 2020.

1.4 The High Court Judgement for Chain House Lane was published on 21st August 2020 and Mr Justice Dove quashed the appeal decision on Ground 5. The Judgement is CD7.1.

Pear Tree Lane Appeal Decision

1.5 An appeal decision was issued by the Planning Inspectorate in August 2020 for a scheme for residential development in Chorley on Safeguarded Land (Pear Tree Lane, Euxton). Whilst that decision was in Chorley, it was determined against the Central Lancashire Core Strategy and was a site designated as Safeguarded Land in the Chorley Local Plan. Both parties consider this to be a relevant decision for this appeal and is CD6.2.

90 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

Housing Requirement

1.6 It is agreed that:

• (a) the adopted strategic policy for the purposes of paragraph 73 is CS policy 4,

• (b) the policy is more than 5 years old, and

• (c) it was subject to review in 2017 when it was found not to require updating.

1.7 The Council contends that the third anniversary of the first MOU has elapsed, the NPPF revised, the standard methodology introduced and updated evidence produced which represent a significant change in circumstances which render the first MOU and Policy 4 out-of-date.

1.8 The Appellant considers the first MoU to constitute the outcome of the 2017 review for the purpose of footnote 37 and paragraph 73 of the Framework. The fact that Policy 4 was reviewed and found not to require updating in 2017 is why the Appellant contends that the five year housing land supply should be measured against Policy 4.

1.9 A further Memorandum of Understanding and Statement of Cooperation (MoU2) which addresses Core Strategy Policy 4 was published in April 2020 with a Statement of Common Ground in May 2020. The LPA considers this constitutes a second review. The Appellant disagrees and continues to use Policy 4 of the Core Strategy.

Housing Land Supply Position

1.10 Please see Housing Supply Statement of Ground.

91 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

2. Appeal proposal

2.1 This appeal seeks outline planning permission for the construction of up to 100 dwellings with access considered. The final layout, scale, landscaping and appearance would be the subject of a reserved matters application.

2.2 The proposed illustrative site layout submitted with the original application shows how the dwellings can be comfortably accommodated on the site. This was not submitted for approval but a condition is proposed to require any application for the approval of reserved matters to be designed in substantial accordance with the illustrative layout.

2.3 The application was accompanied by the following documents:

• Illustrative Layout Plan Ref 1638/WHD/CHL/SK01 by DGL Associates;

• Ecology Survey and Assessment (October 2018) by ERAP;

• Access Arrangements Plan Ref: SCP/18355/F01 by SCP;

• Tree Survey Report by Trevor Bridge;

• Phase 1 Geo Environmental Desk Study Report by REFA (Ref: 18119);

• Planning, Design and Access Statement

• Flood Risk Assessment; and,

• Transport Impact Assessment prepared by SCP (October 2018) and (April 2019).

2.4 The application was determined on the following plans:

• Illustrative Layout 1638WHD/CHL/IM01 Rev A

• SCP/18355/F02 (Appendix 2 of April 2019 TA)

• SCP/18355/SK07 (Appendix 4 of April 2019 TA)

2.5 The access plans and illustrative layout were revised and submitted to the LPA as part of an updated TA in September 2019 (CD3.15). This was raised with Inspector during the Case Management Conference for the original appeal and it was agreed that the change was minor and that allowing it to be considered would cause no prejudice. The only change was that the access plan and masterplan were revised to avoid a tree on the north eastern boundary. This

92 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

was undertaken with the agreement of the LPA and LCC as Highway Authority. Therefore the previous appeal proceeding on the following plans:

• SCP 18355/FO2 Rev B (CD3.5); and,

• 1638WHD/CHL/IM01 Rev B (CD3.3).

2.6 Following the third reason for refusal, an Air Quality Assessment was prepared and submitted to the LPA in August 2019. This demonstrates that the proposal would be compliant with Policy 30 of the Central Lancashire Core Strategy (CS) and would not cause harm due to air pollution. The withdrawal of the third reason for refusal was confirmed by the Planning Committee on 18th September 2019.

2.7 All of the proposed dwellings within the appeal site would be served by a single access road which would be taken from Chain House Lane. The main internal access road is shown on the Illustrative Site Layout in a north/south direction and the precise details would form part of the reserved matters application and provide access to the adjoining parcels of land controlled by Homes England. Access does not form part of the reason for refusal and is an agreed matter for the purposes of this appeal.

3. Site and area description

3.1 The appeal site is approximately 3.6 hectares in size and is located on a greenfield site which is positioned to the south of Chain House Lane and east of the villages of Whitestake, New Longton and the A582 Penwortham Way.

3.2 The site is located within a linear ribbon of development which is established along Chain House Lane. There are existing residential properties directly to the north (along Chain House Lane), and to the west (along Brook Lane). The north eastern part of the site abuts Church Lane with a dwelling located on the junction of Coote Lane and Church Lane. The remaining land is surrounded by open fields which are contained to the east and south by the Ormskirk branch railway line.

3.3 Access to the site can be served directly from Chain House Lane.

93 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

3.4 The land is designated within the South Ribble Borough Local Plan under Policy G3 as Safeguarded Land and forms part of the South of Coote Lane and Chain House Lane allocation (S3). This can be seen from the extract of the proposals map in Figure 1 below.

Figure 1: South Ribble Policies Map (2015) extract - red line superimposed

3.5 The site is neither located within a Conservation Area nor within close proximity of any designated heritage assets or Tree Preservation Orders.

3.6 The site is located within Flood Zone 1 and therefore has a low probability of flooding.

3.7 There are no public rights of within or near to the site that would be affected by the proposed development.

3.8 The site’s accessibility to local services and amenities is as follows:

• The nearest bus stops are located directly adjacent to the site boundary on Church Lane; 0.2km from the site on Chain House Lane providing hourly services into Lostock Hall and Preston.

94 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

• Lostock Hall railway station is located just over a mile away from the site (approx. 6 mins by cycle and 21 mins walking1) which provides access to Preston, Blackburn, Leeds and York.

• The nearest retail provisions are located in Lostock Hall which is approx. 0.82 miles from the site.

3.9 The Council previously agreed in the SOCG to the previous inquiry that the site benefitted from good accessibility to local services and amenities and that retail provision were a comfortable walking and cycling distance for future residents. The Council’s witness for this inquiry takes a different view regarding accessibility to services which he will address in evidence.

3.10 The appeal proposes financial contributions to bus services to support the continued 114 bus service for the next 5 years. The consideration of this in the planning balance will be addressed in evidence.

3.11 The site is an accessible location for development.

4. Planning policy

Development plan

4.1 Section 38(6) of the Planning & Compulsory Purchase Act 2004 states that all planning applications must be determined in accordance with the development plan, unless material considerations indicate otherwise.

4.2 The development plan for the purposes of determining this appeal is comprised of the relevant policies contained within the following documents;

• the Central Lancashire Core Strategy (2012). It was adopted in July 2012 and forms Part 1 of the development plan; and,

• the South Ribble Local Plan (2015). It was adopted in July 2015 to meet housing need and regulate development within the Borough to 2026 through the allocation of land.

1 Figures taken from www.googlemaps.com 2 As above.

95 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

4.3 Both the Central Lancashire Core Strategy and the Local Plan were adopted in the context of the 2012 NPPF. However both plans were adopted on the basis of meeting the housing needs of the Borough as a minimum.

4.4 The following section sets out the relevant local planning policies.

Central Lancashire Core Strategy

• Policy 1 Location of Growth

• Policy 3 Travel

• Policy 4 Housing delivery

• Policy 6 Housing Quality

• Policy 7 Affordable and special needs housing

• Policy 9 Employment

• Policy 17 Design of new buildings

• Policy 18 Green Infrastructure

• Policy 22 Biodiversity and Geodiversity

• Policy 26 Crime and community safety

• Policy 27 Sustainable Resources and New Development

• Policy 29 Water Management

• Policy 31 Agricultural Land

• Policy MP

South Ribble Local Plan Policy

• Policy A1 Developer Contributions

• Policy F1 Parking standards

• Policy G3 Safeguarded land for future development

• Policy G8 Green Infrastructure and networks- future provision

• Policy G10 Green infrastructure provision in residential developments

• Policy G13 Trees and woodland

96 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

• Policy G14 Unstable or contaminated land

• Policy G16 Biodiversity and nature conservation

• Policy G17 Design Criteria for new development

4.5 The site is safeguarded for development in Policy G3 which states;

“Within the borough, land remains safeguarded and not designated for any specific purpose within the Plan period at the following locations:

S1 South of Factory Lane and east of the West Coast Main Line

S2 Southern area of the Major Development Site at Pickering’s Farm, Penwortham

S3 South of Coote Lane, Chain House Lane, Farington

S4 Land off Church Lane, Farington

S5 Land off Emnie Lane, Leyland

Existing uses will for the most part remain undisturbed during the Plan period or until the Plan is reviewed. Planning permission will not be granted for development which would prejudice potential longer term, comprehensive development of the land.” (our emphasis)

Other Material Considerations

National planning policy and guidance

Supplementary Planning Documents

4.6 The following provides a list of supplementary planning documents which are relevant to the proposal:

• Open Space and Playing Pitch Financial Contribution Schedule (2013);

• Biodiversity and Nature Conservation (2015);

• Central Lancashire Affordable Housing SPD (October 2012);

• Central Lancashire Design Guide (2012);

• Employment Skills SPD (2017).

97 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

5. Agreed matters

5.1 There are no access or highways issues that would justify dismissal of this appeal. In considering the original application, the LPA agreed that the proposed highways arrangements were acceptable.

5.2 There are no technical objections from statutory consultees and the proposed development would have an acceptable impact on the following, subject to imposition of conditions and planning obligations as necessary:

• ecology and protected species;

• flooding and drainage;

• risk of crime;

• contaminated land;

• residential amenity;

• archaeology;

• arboricultural impacts;

• provision of on-site open space; and,

• energy-efficiency.

5.3 A summary of the comments from statutory consultees are appended to this SOCG in Appendix 1.

98 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

6. Key Issues

6.1 It is agreed that the substantive issues between the Council and the Appellant are:

• On what basis the housing land supply (base date 1st April 2020) should be calculated. The Housing Supply SoCG sets out further information on this topic. In summary

o The Appellant applies the requirement in Policy 4 of the Core Strategy. The LPA applies the standard methodology.

o The deliverable supply. Please see Housing Supply Statement of Ground.

• Whether the granting of planning permission would prejudice the comprehensive delivery of development in the area.

• It is agreed by both parties that the tilted planning balance is engaged on the basis that:

o If Policy 4 of the Core Strategy is used the LPA cannot demonstrate a 5-year housing land supply; and,

o If LHN is used, the tilted planning balance is engaged as Policy G3 should be regarded as out-of-date having regard to the difference in the distribution of housing arising from this across the three Central Lancashire authorities compared to that in Core Strategy Policy 4(a).

• The weight to be given to the benefits and adverse impacts through the application of the tilted planning balance.

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7. Draft Heads of Terms

7.1 Subject to any changes, the proposed are to be addressed through the Section 106 agreement.

• 30% affordable housing

• A contribution per dwelling would be required for playing pitch of £1,507 together with a contribution to equipped play areas

• Bus contribution of £150,000 to support the continued 114 service between Preston and Chorley

• contribution towards cycle parking enhancements at Lostock Hall train station

• public open space and contribution to upkeep thereof.

Stephen Harris 16 February 2021

Signed by Appellant

Nick Ireland, Director, Iceni Projects. 16 February 2021

Signed by LPA

100 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

8. Appendix 1: Responses from Statutory Consultees – Summary

Statutory Consultee Planning application Planning application Ref/2020/00505 Relevant NPPF Paragraph Response Ref/2018/9634

LCC Highways No objection subject to No objection subject to conditions Paragraph 108 a) which require conditions controlling site access, controlling site access, Construction applications for development to construction Management Plan Management Plan and a legal ensure appropriate opportunities and a legal agreement to secure agreement to secure off site to promote sustainable patterns off site public transport contributions for: of development are met. contributions and cycle lockers. £6,000 cycle parking enhancements £6,000 cycle parking at Lostock Hall b) Safe and suitable access can enhancements at Lostock Hall £150,000 daytime bus services be achieved for all users. £150,000 daytime bus services £6,000Travel Plan

LCC Education Advised Education contribution Advised Education contribution not Paragraph 94 of the NPPF not required. required. considers Education requirements with regard to development proposals. LCC Education has confirmed there is no requirement and therefore the scheme is compliant with the NPPF.

Local Lead Flood No objections subject to No objections subject to conditions Paragraph 163 requires Authority conditions to manage the risk of to manage the risk of flooding. applications over a specific size flooding. The conditions have been slightly to be accompanied by a site- updated and reworded with the specific flood risk assessment. need for the management and The application details comply maintenance plan incorporated with with this requirement. in the same condition. Paragraph 165 requires Sustainable Drainage Systems to be incorporated within the development. The imposition of

12 101 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

conditions would address this point. United Utilities Conditions controlling foul and Conditions controlling foul and Paragraph 165 requires surface water drainage details to surface water drainage details to be Sustainable Drainage Systems to be submitted. Advisory notes submitted. Advisory notes about the be incorporated within the about the need to extend the need to extend the watermains and development. Conditions to watermains and infrastructure infrastructure crosses the site which control this aspect and require crosses the site which may have may have implications for a detailed surface water to drain to a implications for a detailed layout. layout. separate system would address this point. EA Do not wish to comment upon the Do not wish to comment upon the Paragraph 163 relates to ensure application application that flood risk is not increased elsewhere. Ecology Services In summary no significant Required Ecology Report to be Paragraph 17O Mitigation to (Greater Manchester ecological issues were identified updated and reviewed. Further minimise any impacts is sought Ecology Unit) within the submitted surveys were carried out which through appropriate information. Issues relating to confirmed that the updated conditions. There is no nesting birds can be controlled ecological report found no material significant harm to biodiversity via conditions. However, more change and that the net ecological and appropriate mitigation detail is required on the level of gain could be achieved at Reserved planting through conditions mitigation for the loss of over Maters. can be achieved which meets 3ha of low value ecological the aims of paragraph 175. habitats. The illustrative site layout is not supported because of inadequate on-site mitigation -as this is outline and the ecological implications are low compliance with section 170 of the NPPF is possible through a combination of additional landscaping etc and a this aspect can be addressed through a condition.

13 102 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

South Ribble Tree Officer No objections to the No objections to the development Mitigation to minimise any development Conditions Conditions controlling trees to be impacts is sought through controlling trees to be protected, protected, and a method statement appropriate conditions. There is and a method statement if if development enters into the root no significant harm to development enters into the root protection area. A landscape plan biodiversity and appropriate protection area. A landscape to be submitted detailing new tree mitigation planting can be plan to be submitted detailing planting numbers species size which achieved the proposal meets new tree planting numbers should include broadleaf deciduous the aims of paragraph 170 and species size which should include upright trees. The tree survey is from 175. broadleaf deciduous upright august 2018 and a walk over survey trees. prior to commencement to ensure any significant finds which affect retention is required. South Ribble Housing The application details provide for The application details provide for The scheme provides 30% up to 100 dwellings with 30% up to 100 dwellings with 30% affordable housing on site and affordable housing to be affordable housing to be provided meets the aims of Paragraph 62 provided on site meeting the on site meeting the targets set out in of the NPPF. targets set out in Policy 7 of the Policy 7 of the CLJCS. Updated CLJCS. The borough has a need evidence for the Central Lancashire for smaller affordable units Housing Study (2020) identifies an including one and two acute need for Social Rented homes bedroomed flats/apartments and and this tenure should make3 up at two- and three-bedroom houses. at least 70% of the rented tenure mix. Population projections highlight an ageing population for South Ribble: provision to meet the needs of this group would be welcomed as housing for older people has been identified as a priority. SRBC Environmental The EHO has suggested a The EHO has suggested a number of Paragraph 178 seeks to ensure Health Officer number of conditions no burning, conditions no burning, dust that planning decision address dust management plan, wheel management plan, wheel wash issues of land contamination. wash facilitates, control of the facilitates, control of the storage Conditions controlling this storage compound and site compound and site cabins, hours of aspect and the importation of cabins, hours of construction, construction, piling activities, soil are required. Electric

14 103 Appeal 3234070 Statement of Common Ground Chain House Lane February 2021

piling activities, control of control of invasive weeds and vehicle points would be invasive weeds and electric electric vehicle recharging points. controlled via condition to vehicle recharging points. meet the aims of paragraph An Air Quality Assessment was 110 e). Cycle storage at submitted in August 2019 and Lostock Hall Railway Station then updated in September 2019 would be conditioned as and subject to mitigation encouraged at Paragraph 110 measures as identified in Table 5 ( e ) being implemented the development would be acceptable.

NHS Chorley and South The two nearest practices to No comments received Para 92 encourages an Ribble Commissioning Chain House Lane – New integrated approach to Group (CCG) Longton Surgery and Lostock Hall planning for facilities. The Local have very little capacity, if any Plan review would be the developer contributions can be vehicle to request additional made (however small) to either resources in a planned practice it may help them – for approach. example to reconfigure a room to create extra capacity or to support with equipment etc.

Network Rail Do not object to the scheme but Reiterate their comments from Policy 108 requires consideration make the following points: the previous application. be given to safe and suitable proposed layout should not access for all users. include potential footpaths out of the application area that could Policy 110 create places that lead to Lodge Lane Level are safe, secure and minimise Crossing and the public right of the scope between pedestrians’ way over the railway. It is noted cyclists and vehicles. that the proposed layout with the potential footpath links from the The Council did have concerns site to the East, West and South that the development and any (which are currently fields) is future proposals had not been

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designed to allow expansion in through a Masterplan process to the wider area. In light of this, address these issues. should further proposals come forward, With regard to specific details then the cumulative impact of boundary treatment can be these proposals would require addressed through the RM closure of the Lodge Lane Level application. Crossing. The proposed wording of the To protect assets the developer drainage conditions will enable needs to liaise directly with these aspects to be addressed. Network Rail.

Details of piling and vibro- compaction machinery to be submitted to Network Rail for their agreement.

Network Rail would be concerned by the use of infiltration within 30m of its boundary. All surface water to drain away from the site and surface water within 30m of the railway boundary to be removed from site via a closed sealed pipe system. Crime Prevention Officer No objections: recommends No objections: recommends Secure Para 91 (b) to ensure places are Secure by Design Homes 2016 in by Design Homes 2019 guide in safe and accessible and that relation to security relation to security the opportunities to design out crime are encouraged. Fire and Rescue None submitted. Advise about access arrangements Policy 108 safe and suitable access for all users

16 105 106 Town and Country Planning Act 1990 – Section 78 Town and Country Planning (Development Management Procedure) (England) Order 2013 Town and Country Planning (Inquiries Procedure) (England) Rules 2000

Appeal by Wainhomes (North West) Ltd Land to the south of Chain House Lane, Whitestake, Preston

Against the Refusal of Planning Permission by South Ribble Borough Council on the Application for:

“Up to 100 dwellings with access and associated works.”

Appeal Ref: APP/F2360/W/19/3234070

Statement of Common Ground (Housing Supply) between South Ribble Borough Council & Wainhomes (North West) Ltd.

107 Statement of Common Ground (Housing Supply) – 16/02/2021

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108 Statement of Common Ground (Housing Supply) – 16/02/2021

Statement of Common Ground – Housing Supply 1. Introduction

1.1. This Statement of Common Ground (SoCG) has been prepared jointly by Wainhomes (North West) Ltd (hereinafter referred to as ‘The Appellant’) and South Ribble Borough Council (hereinafter referred to as “The Council”). 1.2. The Statement refers to Appeal Ref: APP/F2360/W/19/3234070 against the decision of the Council to refuse outline planning permission for the site known as land at land to the south of Chain House Lane, Whitestake, Preston (application reference: 07/2018/9316/OUT) for: “Up to 100 dwellings with access and associated works” 1.3. This SoCG refers only to matters concerned with the 5-year housing land supply position (‘the 5YHLS’). A separate SoCG covering all other planning matters has been prepared. This includes a summary of the background, site location and proposals. 1.4. This Statement sets out the agreed matters of fact and agreed positions between the Council and the Appellant in respect of housing supply matters for this appeal. 1.5. Finally, this statement summarises those areas of disagreement between the parties. 1.6. This final version of the SoCG (Housing Supply) is jointly agreed by:

Signed Ben Pycroft Date 16/02/2021

Ben Pycroft On behalf of Wainhomes (North West) Ltd

Signed Date 16/02/2021 Gregg Boyd On behalf of South Ribble Borough Council

109 Statement of Common Ground (Housing Supply) – 16/02/2021

2. Matters of agreement

The Council’s latest Housing Land Position Statement

2.1. The Council’s most recent assessment of 5 year supply is set out in the Housing Land Position (HLP). The base date of this assessment is 1st April 2020 and it covers the five year period 1st April 2020 to 31st March 2025.

The Relevant Five Year Period

2.2. Both parties agree that the relevant 5-year period for the determination of this appeal is 1st April 2020 to 31st March 2025.

Historic Shortfall

2.3. The position on shortfall depends on how the housing requirement is calculated. 2.4. The base date of the adopted plan is 1st April 2010. However, as Policy 4 of the Core Strategy explains, the backlog since 1st April 2003 should be taken into account. The planned housing requirement set out in the Core Strategy is 417 dwellings. By 31st March 2020, 7,089 dwellings should have been completed based on an annual requirement of 417 dwellings. Only 5,981 dwellings were completed in the same period and therefore it is agreed that the backlog against the adopted Plan housing requirement is 1,108 dwellings. 2.5. Should the five year housing land supply be measured against the adopted housing requirement, it is agreed that the past shortfall of 1,108 dwellings should also be addressed in full in the five year period (i.e. the “Sedgefield” method). 2.6. When the housing land supply is measured against the standard method, it is agreed that there is no backlog included within the calculation.

The Buffer

2.7. Based on the published results for the Housing Delivery Test, both parties agree that a 5% buffer should be applied to the housing requirement in line with paragraph 73 of the Framework.

Local Housing Need

2.8. It is agreed that the Local Housing Need calculated using the standard method set out in national planning guidance is currently 191 dwellings per annum.

110 Statement of Common Ground (Housing Supply) – 16/02/2021

3. Matters of Disagreement

The five year housing requirement

3.1. The Council considers that its five year housing land supply should be measured against the local housing need using the standard method set out in the planning practice guidance. The Council will set out the reasons for this in evidence. 3.2. The Appellant considers that the five year housing land supply should be measured against the adopted housing requirement. The Appellant will set out the reasons for this in evidence. 3.3. The Council accepts that if the five year housing land supply should be measured against the adopted housing requirement (plus past shortfall and a 5% buffer) that it cannot demonstrate a deliverable five year housing land supply and footnote 7 and paragraph 11(d) of the Framework would be engaged. The Appellant agrees that if the housing land supply is measured against the standard method, a five year housing land supply could be demonstrated.

Extent of the deliverable supply

3.4. The Council’s published position, as set out in the latest Housing Land Supply Position Statement is that the deliverable five year housing land supply at 1st April 2020 is 2,665 dwellings. Based on current evidence and for the purpose of this appeal, the Council considers it can demonstrate a deliverable supply of 2,546 dwellings. This revised supply figure follows the removal of three sites from the published position and amendment to the overall delivery of one site which are shown in Table 1 below. 3.5. The Appellant considers that the deliverable supply is 2,003 dwellings. The difference between the two positions is 543 dwellings. The sites and sources of supply in dispute are set out in Table 1. All other sources of supply informing the five year housing land supply calculation are agreed:

111 Statement of Common Ground (Housing Supply) – 16/02/2021

Table 1: Disputed sites

Site Council’s Council’s Appellant’s Difference 5YHLS 5YHLS 5YHLS (Published) (Appeal) Brindle Road (land 11 0 0 0 adjacent Cotton Gardens), Bamber Bridge East East of Leyland Road / 63 63 0 63 Land off Claytongate Drive / Land at Moor Hey School, Charnock Pickering’s Farm, 90 0 0 0 Charnock / Farington West Land between Moss Lane 168 168 144 24 and rear of 392 Croston Road, Farington Moss, Farington West Land off School Lane / 40 33 0 33 Old School Drive, Longton Lostock Hall Primary 10 0 0 0 School, Avondale Drive, Lostock Hall Windfall allowance 600 600 177 423

TOTAL 982 864 321 543

112 Statement of Common Ground (Housing Supply) – 16/02/2021

3.6. Against the adopted housing requirement plus the past shortfall and a 5% buffer, the Council’s position equates to 3.8 years and the Appellant’s position equates to 2.99 years. Against the local housing need and a 5% buffer, the Council’s position equates to 12.7 years and the Appellant’s position equates to 9.97 years. The respective positions are set out in the following table:

Table 2: South Ribble Council’s Five Year Supply at 1st April 2020

Requirement Council Council Appellant Appellant Adopted Local Adopted Local Housing Housing Housing Housing Requirement Need Requirement Need

A Annual requirement 417 191 417 191 B Past shortfall at 31st 1,108 0 1,108 0 March 2020 C Amount of past 1,108 0 1,108 0 shortfall to be addressed in the five year period D Total five year 3,193 955 3,193 955 requirement (A X 5 + C) E Requirement plus 3,353 1,003 3,353 1,003 5% buffer (D + 5%) F Annual requirement 671 201 671 201 plus buffer (E / 5 years) Supply

G Five year supply 1st 2,546 2,546 2,003 2,003 April 2020 to 31st March 2025 H Years supply (G / 3.8 12.7 2.99 9.97 F)

[ENDS]

113 114 Central Lancashire Local Development Framework Adopted Core Strategy July 2012 71

Policy 4: Housing 8.15 The RS sets a target of “at least 70%” of new housing being provided on previously Delivery developed (brownfield) land. National planning policy has now reclassified residential Provide for and manage the delivery of new gardens as greenfield land. However even housing by: after taking account of this change in respect (a) Setting and applying minimum of housing development of such land both in requirements as follows: terms of past performance and likely future trends, (derived from the SHLAA evidence) a • Preston 507 dwellings pa 70% target is still achievable. In the event that • South Ribble 417 dwellings pa an upturn in the house building market takes • Chorley 417 dwellings pa longer than expected, authorities will need to be flexible in their approach to meet the with prior under-provision of 702 dwellings housing delivery requirements but there will be also being made up over the remainder of no compromise on overall design standards. the plan period equating to a total of 22,158 Regular monitoring will be undertaken and dwellings over the 2010-2026 period. analysis of data to understand trends and (b) Keeping under review housing delivery predict future outcomes. performance on the basis of rolling 3 year 8.16 The likely distribution of housing construction levels. If, over the latest 3 development is set out in Table 1 in Chapter 5. year review period, any targets relating to housing completions or the use of brownfield are missed by more than minus 20% , the phasing of uncommitted sites will be adjusted as appropriate to achieve a better Table 4: Housing Requirements match and/or other appropriate management in Central Lancashire actions taken; provided this would not Authority RSS Annual adversely impact on existing housing or Requirement* markets within or outside the Plan area. (dwellings) (c) Ensuring there is enough deliverable land suitable for house building capable of providing a continuous forward looking 5 Preston 507 year supply in each district from the start Chorley 417 of each annual monitoring period and in South Ribble 417 locations that are in line with the Policy 1, Central the brownfield target (of 70% of all new Lancashire (total) 1,341 housing) and suitable for developments that will provide the range and mix of house types necessary to meet the requirements of * Net of demolitions the Plan area.

Preparing and reviewing plans

31. The preparation and review of all policies should be underpinned by relevant and up-to-date evidence. This should be adequate and proportionate, focused tightly on supporting and justifying the policies concerned, and take into account relevant market signals.

32. Local plans and spatial development strategies should be informed throughout their preparation by a sustainability appraisal that meets the relevant legal requirements17. This should demonstrate how the plan has addressed relevant economic, social and environmental objectives (including opportunities for net gains). Significant adverse impacts on these objectives should be avoided and, wherever possible, alternative options which reduce or eliminate such impacts should be pursued. Where significant adverse impacts are unavoidable, suitable mitigation measures should be proposed (or, where this is not possible, compensatory measures should be considered).

33. Policies in local plans and spatial development strategies should be reviewed to assess whether they need updating at least once every five years, and should then be updated as necessary18. Reviews should be completed no later than five years from the adoption date of a plan, and should take into account changing circumstances affecting the area, or any relevant changes in national policy. Relevant strategic policies will need updating at least once every five years if their applicable local housing need figure has changed significantly; and they are likely to require earlier review if local housing need is expected to change significantly in the near future.

Development contributions

34. Plans should set out the contributions expected from development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, flood and water management, green and digital infrastructure). Such policies should not undermine the deliverability of the plan.

Examining plans

35. Local plans and spatial development strategies are examined to assess whether they have been prepared in accordance with legal and procedural requirements, and whether they are sound. Plans are ‘sound’ if they are:

17 The reference to relevant legal requirements refers to Strategic Environmental Assessment. Neighbourhood plans may require Strategic Environmental Assessment, but only where there are potentially significant environmental effects. 18 Reviews at least every five years are a legal requirement for all local plans (Regulation 10A of the Town and Country Planning (Local Planning) (England) Regulations 2012). 11

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5. Delivering a sufficient supply of homes

59. To support the Government’s objective of significantly boosting the supply of homes, it is important that a sufficient amount and variety of land can come forward where it is needed, that the needs of groups with specific housing requirements are addressed and that land with permission is developed without unnecessary delay.

60. To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.

61. Within this context, the size, type and tenure of housing needed for different groups in the community should be assessed and reflected in planning policies (including, but not limited to, those who require affordable housing, families with children, older people, students, people with disabilities, service families, travellers25, people who rent their homes and people wishing to commission or build their own homes26).

62. Where a need for affordable housing is identified, planning policies should specify the type of affordable housing required27, and expect it to be met on-site unless:

a) off-site provision or an appropriate financial contribution in lieu can be robustly justified; and

b) the agreed approach contributes to the objective of creating mixed and balanced communities.

63. Provision of affordable housing should not be sought for residential developments that are not major developments, other than in designated rural areas (where policies may set out a lower threshold of 5 units or fewer). To support the re-use of brownfield land, where vacant buildings are being reused or redeveloped, any affordable housing contribution due should be reduced by a proportionate amount28.

64. Where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the homes to be available for

25 Planning Policy for Traveller Sites sets out how travellers’ housing needs should be assessed for those covered by the definition in Annex 1 of that document. 26 Under section 1 of the Self Build and Custom Housebuilding Act 2015, local authorities are required to keep a register of those seeking to acquire serviced plots in the area for their own self-build and custom house building. They are also subject to duties under sections 2 and 2A of the Act to have regard to this and to give enough suitable development permissions to meet the identified demand. Self and custom-build properties could provide market or affordable housing. 27 Applying the definition in Annex 2 to this Framework. 28 Equivalent to the existing gross floorspace of the existing buildings. This does not apply to vacant buildings which have been abandoned. 17

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affordable home ownership29, unless this would exceed the level of affordable housing required in the area, or significantly prejudice the ability to meet the identified affordable housing needs of specific groups. Exemptions to this 10% requirement should also be made where the site or proposed development:

a) provides solely for Build to Rent homes;

b) provides specialist accommodation for a group of people with specific needs (such as purpose-built accommodation for the elderly or students);

c) is proposed to be developed by people who wish to build or commission their own homes; or

d) is exclusively for affordable housing, an entry-level exception site or a rural exception site.

65. Strategic policy-making authorities should establish a housing requirement figure for their whole area, which shows the extent to which their identified housing need (and any needs that cannot be met within neighbouring areas) can be met over the plan period. Within this overall requirement, strategic policies should also set out a housing requirement for designated neighbourhood areas which reflects the overall strategy for the pattern and scale of development and any relevant allocations30. Once the strategic policies have been adopted, these figures should not need re- testing at the neighbourhood plan examination, unless there has been a significant change in circumstances that affects the requirement.

66. Where it is not possible to provide a requirement figure for a neighbourhood area31, the local planning authority should provide an indicative figure, if requested to do so by the neighbourhood planning body. This figure should take into account factors such as the latest evidence of local housing need, the population of the neighbourhood area and the most recently available planning strategy of the local planning authority.

Identifying land for homes

67. Strategic policy-making authorities should have a clear understanding of the land available in their area through the preparation of a strategic housing land availability assessment. From this, planning policies should identify a sufficient supply and mix of sites, taking into account their availability, suitability and likely economic viability. Planning policies should identify a supply of:

a) specific, deliverable sites for years one to five of the plan period32; and

29 As part of the overall affordable housing contribution from the site. 30 Except where a Mayoral, combined authority or high-level joint plan is being prepared as a framework for strategic policies at the individual local authority level; in which case it may be most appropriate for the local authority plans to provide the requirement figure. 31 Because a neighbourhood area is designated at a late stage in the strategic policy-making process, or after strategic policies have been adopted; or in instances where strategic policies for housing are out of date. 32 With an appropriate buffer, as set out in paragraph 73. See glossary for definitions of deliverable and developable. 18

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b) specific, developable sites or broad locations for growth, for years 6-10 and, where possible, for years 11-15 of the plan.

68. Small and medium sized sites can make an important contribution to meeting the housing requirement of an area, and are often built-out relatively quickly. To promote the development of a good mix of sites local planning authorities should:

a) identify, through the development plan and brownfield registers, land to accommodate at least 10% of their housing requirement on sites no larger than one hectare; unless it can be shown, through the preparation of relevant plan policies, that there are strong reasons why this 10% target cannot be achieved;

b) use tools such as area-wide design assessments and Local Development Orders to help bring small and medium sized sites forward;

c) support the development of windfall sites through their policies and decisions – giving great weight to the benefits of using suitable sites within existing settlements for homes; and

d) work with developers to encourage the sub-division of large sites where this could help to speed up the delivery of homes.

69. Neighbourhood planning groups should also consider the opportunities for allocating small and medium-sized sites (of a size consistent with paragraph 68a) suitable for housing in their area.

70. Where an allowance is to be made for windfall sites as part of anticipated supply, there should be compelling evidence that they will provide a reliable source of supply. Any allowance should be realistic having regard to the strategic housing land availability assessment, historic windfall delivery rates and expected future trends. Plans should consider the case for setting out policies to resist inappropriate development of residential gardens, for example where development would cause harm to the local area.

71. Local planning authorities should support the development of entry-level exception sites, suitable for first time buyers (or those looking to rent their first home), unless the need for such homes is already being met within the authority’s area. These sites should be on land which is not already allocated for housing and should:

a) comprise of entry-level homes that offer one or more types of affordable housing as defined in Annex 2 of this Framework; and

b) be adjacent to existing settlements, proportionate in size to them33, not compromise the protection given to areas or assets of particular importance in this Framework34, and comply with any local design policies and standards.

33 Entry-level exception sites should not be larger than one hectare in size or exceed 5% of the size of the existing settlement. 34 i.e. the areas referred to in footnote 6. Entry-level exception sites should not be permitted in National Parks (or within the Broads Authority), Areas of Outstanding Natural Beauty or land designated as Green Belt. 19

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72. The supply of large numbers of new homes can often be best achieved through planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities. Working with the support of their communities, and with other authorities if appropriate, strategic policy-making authorities should identify suitable locations for such development where this can help to meet identified needs in a sustainable way. In doing so, they should:

a) consider the opportunities presented by existing or planned investment in infrastructure, the area’s economic potential and the scope for net environmental gains;

b) ensure that their size and location will support a sustainable community, with sufficient access to services and employment opportunities within the development itself (without expecting an unrealistic level of self-containment), or in larger towns to which there is good access;

c) set clear expectations for the quality of the development and how this can be maintained (such as by following Garden City principles), and ensure that a variety of homes to meet the needs of different groups in the community will be provided;

d) make a realistic assessment of likely rates of delivery, given the lead-in times for large scale sites, and identify opportunities for supporting rapid implementation (such as through joint ventures or locally-led development corporations)35; and

e) consider whether it is appropriate to establish Green Belt around or adjoining new developments of significant size.

Maintaining supply and delivery

73. Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies36, or against their local housing need where the strategic policies are more than five years old37. The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:

35 The delivery of large scale developments may need to extend beyond an individual plan period, and the associated infrastructure requirements may not be capable of being identified fully at the outset. Anticipated rates of delivery and infrastructure requirements should, therefore, be kept under review and reflected as policies are updated. 36 For the avoidance of doubt, a five year supply of deliverable sites for travellers – as defined in Annex 1 to Planning Policy for Traveller Sites – should be assessed separately, in line with the policy in that document. 37 Unless these strategic policies have been reviewed and found not to require updating. Where local housing need is used as the basis for assessing whether a five year supply of specific deliverable sites exists, it should be calculated using the standard method set out in national planning guidance. 20

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a) 5% to ensure choice and competition in the market for land; or

b) 10% where the local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan38, to account for any fluctuations in the market during that year; or

c) 20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply39.

74. A five year supply of deliverable housing sites, with the appropriate buffer, can be demonstrated where it has been established in a recently adopted plan, or in a subsequent annual position statement which:

a) has been produced through engagement with developers and others who have an impact on delivery, and been considered by the Secretary of State; and

b) incorporates the recommendation of the Secretary of State, where the position on specific sites could not be agreed during the engagement process.

75. To maintain the supply of housing, local planning authorities should monitor progress in building out sites which have permission. Where the Housing Delivery Test indicates that delivery has fallen below 95% of the local planning authority’s housing requirement over the previous three years, the authority should prepare an action plan in line with national planning guidance, to assess the causes of under- delivery and identify actions to increase delivery in future years.

76. To help ensure that proposals for housing development are implemented in a timely manner, local planning authorities should consider imposing a planning condition providing that development must begin within a timescale shorter than the relevant default period, where this would expedite the development without threatening its deliverability or viability. For major development involving the provision of housing, local planning authorities should also assess why any earlier grant of planning permission for a similar development on the same site did not start.

Rural housing

77. In rural areas, planning policies and decisions should be responsive to local circumstances and support housing developments that reflect local needs. Local planning authorities should support opportunities to bring forward rural exception sites that will provide affordable housing to meet identified local needs, and consider whether allowing some market housing on these sites would help to facilitate this.

78. To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. Planning policies should identify opportunities for villages to grow and thrive, especially where this

38 For the purposes of paragraphs 73b and 74 a plan adopted between 1 May and 31 October will be considered ‘recently adopted’ until 31 October of the following year; and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October in the same year. 39 From November 2018, this will be measured against the Housing Delivery Test, where this indicates that delivery was below 85% of the housing requirement. 21

131 132 27/07/2021 Plan-making - GOV.UK considered to prepare the way for the preparation of development plan documents, marine plans and other local development documents. Plan reviews prepare the way for the preparation of such documents as they involve an assessment of whether policies in a plan need updating.

Plans are required to set out strategic policies that address strategic priorities. These may include cross- boundary matters, including issues such as whether an authority is able to meet all its housing need. Given the direct implications of plan reviews in enabling such matters to be addressed through the updating of policies, it is important that the bodies subject to the Duty to Co-operate have an opportunity to engage in both how plan reviews are undertaken and the review of the plan. Engagement with neighbouring authorities and prescribed bodies needs to occur before a final decision on whether to update policies in a plan is made, as such engagement may influence that decision.

The level of co-operation is expected to be proportionate to the task and should not unduly delay the plan review. For example, an authority may set out how they propose to review the policies in their plan and when and how neighbouring authorities and prescribed bodies will be engaged. A record of how authorities will be engaged in the review of plans and of where agreement has or hasn’t been reached on the need to update a policy or policies can be set out in the Statement of Common Ground.

Paragraph: 075 Reference ID: 61-075-20190723

Revision date: 23 07 2019

Plan reviews

Paragraph: 061 deleted

Revision date: 23 07 2019

How often should a plan or policies be reviewed?

Under regulation 10A of The Town and Country Planning (Local Planning) (England) Regulations 2012 (as amended) (http://www.legislation.gov.uk/uksi/2017/1244/regulation/4/made) local planning authorities must review local plans, and Statements of Community Involvement at least once every 5 years from their adoption date to ensure that policies remain relevant and effectively address the needs of the local community. Most plans are likely to require updating in whole or in part at least every 5 years. Reviews should be proportionate to the issues in hand. Plans may be found sound conditional upon a plan update in whole or in part within 5 years of the date of adoption. Where a review was undertaken prior to publication of the Framework (27 July 2018) but within the last 5 years, then that plan will continue to constitute the up-to-date plan policies unless there have been significant changes as outlined below.

There will be occasions where there are significant changes in circumstances which may mean it is necessary to review the relevant strategic policies earlier than the statutory minimum of 5 years, for example, where new cross-boundary matters arise. Local housing need will be considered to have changed significantly where a plan has been adopted prior to the standard method being implemented, on the basis of a number that is significantly below the number generated using the standard method, or has been subject to a cap where the plan has been adopted using the standard method. This is to ensure that all housing need is planned for a quickly as reasonably possible. https://www.gov.uk/guidance/plan-making 15/36 133 27/07/2021 Plan-making - GOV.UK Paragraph: 062 Reference ID: 61-062-20190315

Revision date: 15 03 2019

What documents does the requirement to review apply to?

The requirement to review applies to all development plan documents, including local plans (which would include those containing strategic or non-strategic policies) and in addition, to Statements of Community Involvement. While not a statutory requirement, the National Planning Policy Framework expects the same approach to be taken with spatial development strategies.

Paragraph: 063 Reference ID: 61-063-20190315

Revision date: 15 03 2019

Are policies considered out-of-date if they are not updated after 5 years?

The National Planning Policy Framework is clear that strategic policies should be prepared over a minimum 15 year period and a local planning authority should be planning for the full plan period (https://www.gov.uk/guidance/climate-change#how-can-local-planning-authorities-identify-appropriate-mitigation- measures-in-plan-making). Policies age at different rates according to local circumstances and a plan does not become out-of-date automatically after 5 years. The review process is a method to ensure that a plan and the policies within remains effective. Applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. Due weight should be given to relevant policies in existing plans according to their consistency with the National Planning Policy Framework. It will be up to the decision-maker to decide the weight to give to the policies.

Paragraph: 064 Reference ID: 61-064-20190315

Revision date: 15 03 2019

What can authorities consider when determining whether a plan or policies within a plan should be updated?

The authority can consider information such as (but not exclusively):

conformity with national planning policy; changes to local circumstances; such as a change in Local Housing Need; their Housing Delivery Test performance; whether the authority can demonstrate a 5 year supply of deliverable sites for housing; whether issues have arisen that may impact on the deliverability of key site allocations; their appeals performance; success of policies against indicators in the Development Plan as set out in their Authority Monitoring Report; the impact of changes to higher tier plans; plan-making activity by other authorities, such as whether they have identified that they are unable to meet all their housing need; https://www.gov.uk/guidance/plan-making 16/36 134 28/07/2021 Housing supply and delivery - GOV.UK ‘confirming’ the 5 year land supply using a recently adopted plan or through a subsequent annual position statement (as set out in paragraph 74 of the National Planning Policy Framework).

Paragraph: 004 Reference ID: 68-004-20190722

Revision date: 22 July 2019

What housing requirement figure should authorities use when calculating their 5 year housing land supply?

Housing requirement figures identified in adopted strategic housing policies should be used for calculating the 5 year housing land supply figure where:

the plan was adopted in the last 5 years, or the strategic housing policies have been reviewed within the last 5 years and found not to need updating.

In other circumstances the 5 year housing land supply will be measured against the area’s local housing need calculated using the standard method.

Paragraph: 005 Reference ID: 68-005-20190722

Revision date: 22 July 2019

Which strategic housing policies are used to calculate the 5 year housing land supply where there is more than one strategic housing requirement policy for an area?

Where there is a conflict between adopted strategic housing requirement policies (for example if a new spatial development strategy supersedes an adopted local plan), the most recently adopted policies will need to be used for the purposes of calculating 5 year housing land supply, in accordance with Section38 (5) of the Planning and Compulsory Purchase Act 2004.

Paragraph: 006 Reference ID: 68-006-20190722

Revision date: 22 July 2019

What constitutes a ‘deliverable’ housing site in the context of plan-making and decision-taking?

In order to demonstrate 5 years’ worth of deliverable housing sites, robust, up to date evidence needs to be available to support the preparation of strategic policies and planning decisions. Annex 2 of the National Planning Policy Framework (https://www.gov.uk/guidance/national-planning-policy-framework/annex-2- glossary#deliverable) defines a deliverable site. As well as sites which are considered to be deliverable in principle, this definition also sets out the sites which would require further evidence to be considered deliverable, namely those which:

have outline planning permission for major development; are allocated in a development plan; https://www.gov.uk/guidance/housing-supply-and-delivery 3/22 135 746 St Modwen Ltd v Communities and Local Govt Secretary (QBD)(QBD)StModwen [2018] PTSR[2018]PTSR

Court of Appeal A St Modwen Developments Ltd v Secretary of State for Communities and Local Government and another Practice Note B [2017] EWCACiv 1643

2017 June 8; Jackson, McCombe, Lindblom LJJ Oct 20

Planning Statutory review Principles applicable Summary Town and Country Planning Act 1990 (c 8), s 288 C Summary of principles to be applied by the court on a challenge under 1 section 288 of the Town and Country Planning Act 1990 (post, paras 6, 7, 65, 66). Dicta of Lindblom J in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2017] PTSR 1283, para 19 approved. The following cases are referred to in the judgment of Lindblom LJ: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local D Government [2014] EWHC 754 (Admin); [2017] PTSR 1283 East Sta›ordshire Borough Council v Secretary of State for Communities and Local Government [2017] EWCACiv 893;[2018] PTSR 88,CA Eastleigh Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 4225 (Admin) Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 168;[2016] PTSR 1315;[2017] 1 All ER 1011, CA; [2017] E UKSC 37;[2017] PTSR 623;[2017] 1 WLR 1865;[2017] 4 All ER 938, SC(E) Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314;[2018] JPL 176,CA Oadby and Wigston Borough Council v Secretary of State for Communities and Local Government [2016] EWCACiv 1040;[2017] JPL 358,CA St Albans City Council and District Council v Hunston Properties Ltd [2013] EWCA 1610 2014 599 Civ ;[ ] JPL ,CA F Solihull Metropolitan Borough Council v Gallagher Estates Ltd [2014] EWCA Civ 1610;[2015] JPL 713,CA South Bucks District Council v Porter (No 2) [2004] UKHL 33;[2004] 1 WLR 1953; [2004] 4 All ER 775, HL(E) Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] EWHC 597 (Admin); [2013] JPL 1145

The following additional cases were cited in argument: G Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; [1947] 2 All ER 680,CA Bolton Metropolitan Borough Council v Secretary of State for the Environment [2017] PTSR 1063;(1990) 61 P&CR343,CA

1 Town and Country Planning Act 1990,s288(1): If any person (a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the H grounds (i) that the order is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that order; or (b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section.

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A Clarke Homes Ltd v Secretary of State for the Environment [2017] PTSR 1081; (1993) 66 P&CR263,CA E v Secretary of State for the Home Department [2004] EWCA Civ 49;[2004]QB 1044;[2004] 2 WLR 1351;[2004] LGR 463,CA Edinburgh Council (City of) v Secretary of State for Scotland [1997] 1 WLR 1447; [1998] 1 All ER 174, HL(Sc) Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the 2001 74 2017 1126 B Regions (Practice Note) [ ] EWHC Admin ;[ ] PTSR Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P&CR26 South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141;[1992] 2 WLR 204;[1992] 1 All ER 573; 90 LGR 201, HL(E) South Somerset District Council v Secretary of State for the Environment (Practice Note) [2017] PTSR 1075;(1992) 66 P&CR83,CA Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening) [2012] UKSC 13;[2012] PTSR 983, SC(Sc) C Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin)

The following additional cases, although not cited, were referred to in the skeleton arguments: Barker Mill Estates, Trustees of the v Test Valley Borough Council [2016] EWHC 3028 2017 408 D (Admin); [ ] PTSR Glover v Secretary of State for the Environment (1980) 44 P&CR359

APPEAL from Ouseley J By an appellants notice, the developer, St Modwen Developments Ltd, appealed the order of Ouseley J [2016] EWHC 968 (Admin), dated 28 April 2016, dismissing its application under section 288 of the Town and Country Planning Act 1990 challenging the decisions of the Secretary of State for Communities and Local E Government by a decision letter dated 25 June 2015 to dismiss two appeals under section 78 of the 1990 Act against the refusal of planning permission by the local planning authority, East Riding of Yorkshire Council, for a large development of new housing on land at Brickyard Lane, Melton Park, about 13 kilometres to the west of Hull. Save Our Ferriby Action Group, which had objected to the proposals, was the third respondent in the appeal. The facts and grounds of appeal are stated in the judgment of Lindblom LJ, post, F paras 2—3, 5.

Christopher Young and James Corbet Burcher (instructed by Irwin Mitchell llp) for the developer. Richard Honey (instructed by Treasury Solicitor) for the Secretary of State. Paul Tucker QC and Freddie Humphreys (instructed by Head of Legal and Democratic Services, East Riding of Yorkshire Council, Kingston upon Hull) for the G local planning authority. Emma Reid-Chalmers (directly instructed) acting pro bono for the objector.

The court took time for consideration.

20 October 2017. The following judgments were handed down.

LINDBLOM LJ H

Introduction 1 The complaint in this appeal is that the Governments planning policy for housing development in the National Planning Policy Framework (the NPPF)in particular, the policy for a ve-year supply of housing land in paragraph 47was

' 2018 The Incorporated Council of Law Reporting for England and Wales 137 748 St Modwen Ltd v Communities and Local Govt Secretary (QBD)(QBD)StModwen [2018] PTSR[2018]PTSR Lindblom LJLindblomLJ misunderstood and misapplied in a decision on a statutory appeal against the refusal A of planning permission. The appeal is by no means the rst of its kind. It raises no new point of law. 2 The appellant, St Modwen Developments Ltd (St Modwen), appeals against the order of Ouseley J, dated 28 April 2016, dismissing its application under section 288 of the Town and Country Planning Act 1990 challenging the decisions of the rst respondent, the Secretary of State for Communities and Local Governmentin a decision letter dated 25 June 2015to dismiss two appeals under section 78 of the B 1990 Act against the refusal of planning permission by the second respondent, East Riding of Yorkshire Council, for a large development of new housing on land at Brickyard Lane, Melton Park, about 13 kilometres to the west of Hull. The third respondent, Save Our Ferriby Action Group, was an objector to the proposals. 3 The appeal site extends to about 38 hectares, in three parcels, the largest of which is about 35 hectares to the south of Monks Way, straddling Brickyard Lane. Access to it is gained from the A63 trunk road to its north. The village of Melton lies C to the north of the A63, the village of North Ferriby to the south, the town of Elloughton-cum-Brough about two kilometres to the west. Much of the site had been allocated for employment development in the development planthe Beverley Borough Local Plan (1996) and the Joint Structure Plan for Kingston upon Hull and the East Riding of Yorkshire (2005)and also in the emerging East Riding Local Plan. The rst of the two schemes before the Secretary of State, the scheme in Appeal A, was for up to 510 dwellings; the second, in Appeal B, for up to 390 dwellings, with 7.7 hectares of land for employment uses. The councils reasons for refusing D planning permission, for both schemes, referred to the loss of employment land, conict with the settlement hierarchy, and prejudice to the progress of the emerging local plan. Both appeals were recovered for determination by the Secretary of State. They were heard at an inquiry that lasted 20 sitting days in November 2013 and April, May and August 2014, and was eventually closed in September 2014. The inspector submitted her report to the Secretary of State on 2 March 2015, recommending that both appeals be dismissed. In his decision letter the Secretary of State agreed with that E recommendation and accordingly dismissed both appeals. 4 The challenge before Ouseley J was pursued on four grounds, all of which he rejected [2016] EWHC 968 (Admin). The appeal before us is more conned. I granted permission to appeal on 11 November 2016. When I did so, I said the argument presented on behalf of St Modwen seemed more elaborate than it need be. I accepted, however, there were matters t for consideration by this courtin particular, the concept of a supply of specic deliverable sites in paragraph 47 of F the NPPF.

The issues in the appeal 5 There are seven grounds of appeal, corresponding broadly to the rst of the four grounds pursued in the court belowdescribed by Ouseley J as Ground 1: Housing land supply. At the hearing counsel agreed that those seven grounds present us with three main issues, which relate closely to each other, but in a logical sequence G are these. (1) Did the Secretary of State misinterpret or misapply government policy for the supply of housing in paragraph 47 of the NPPF, and, in particular, the concepts of supply and delivery, and were his relevant reasons clear and adequate (grounds 5 and 6)? (2) Did the Secretary of State misdirect himself, or fail to provide clear and adequate reasons, in his conclusions on the councils housing trajectory (grounds 1 to 4)? (3) Did the Secretary of State err in law in his conclusions on the councils record 7 of housing delivery (ground )? H

The principles on which the court will act in a section 288 challenge 6 In my judgment at rst instance in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2017] PTSR 1283, para 19 I set out the seven familiar principles that will guide the court in handling a

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A challenge under section 288. This case, like many others now coming before the planning court and this court too, calls for those principles to be stated againand reinforced. They are: (1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably exible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those B issues. An inspector does not need to rehearse every argument relating to each matter in every paragraph: see the judgment of Forbes J in Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P&CR26, 28. (2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the principal important controversial issues. An inspectors reasoning must not give rise to a substantial doubt as to whether he C went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration: see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, 1964B—G. (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. D They are not for the court. A local planning authority determining an application for planning permission is free, provided that it does not lapse into Wednesbury irrationality (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) to give material considerations whatever weight [it] thinks t or no weight at all: see the speech of Lord Ho›mann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780F—H. And, essentially for that reason, an application under section 288 of the 1990 Act does not a›ord an E opportunity for a review of the planning merits of an inspectors decision: see the judgment of Sullivan J in Newsmith Stainless Ltd v Secretary of State for Environment, Transport and the Regions (Practice Note) [2001] EWHC Admin 74 at [6]; [2017] PTSR 1126, para 5 (renumbered)). (4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by F the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration: see the judgment of Lord Reed JSC in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening) [2012] PTSR 983, paras 17—22. (5) When it is suggested that an inspector has failed to grasp a relevant policy G one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question: see the judgment of Ho›mann LJ in South Somerset District Council v Secretary of State for the Environment (Practice Note) [2017] PTSR 1075, 1076—1077;(1992) 66 P&CR83, 85. (6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not H mentioned in the decision letter does not necessarily mean that it has been ignored: see, for example, the judgment of Lang J in Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB) at [58]. (7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public condence in the

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operation of the development control system. But it is not a principle of law that A like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises: see, for example, the judgment of Pill LJ [in] Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P&CR 6, paras 12—14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR137, 145. 7 Both the Supreme Court and the Court of Appeal have, in recent cases, B emphasised the limits to the courts role in construing planning policy: see the judgment of Lord Carnwath JSC in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] PTSR 623, paras 22—26, and my judgment in Mansell v Tonbridge and Malling Borough Council [2018] JPL 176, para 41. More broadly, though in the same vein, this court has cautioned against the dangers of excessive legalism infecting the planning systema warning I think we must now repeat in this appeal: see my judgment in East Sta›ordshire Borough C Council v Secretary of State for Communities and Local Government [2018] PTSR 88, para 50. There is no place in challenges to planning decisions for the kind of hypercritical scrutiny that this court has always rejectedwhether of decision letters of the Secretary of State and his inspectors or of planning o–cers reports to committee. The conclusions in an inspectors report or decision letter, or in an o–cers report, should not be laboriously dissected in an e›ort to nd fault: see my judgment in Mansells case, at paras 41—42, and the judgment of Sir Terence D Etherton C, at para 63.

Paragraphs 47 and 49 of the NPPF 8 Paragraph 47 of the NPPF states: To boost signicantly the supply of housing, local planning authorities should: use their evidence base to ensure that their local plan meets the full, E objectively assessed needs for market and a›ordable 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 specic deliverable sites su–cient to provide ve years worth of housing against their housing requirements with an additional bu›er of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for F land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the bu›er to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land; identify a supply of specic, developable sites or broad locations for growth, for years 6—10 and, where possible, for years 11—15; G for market and a›ordable housing, illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy for the full range of housing describing how they will maintain delivery of a ve-year supply of housing land to meet their housing target; and set out their own approach to housing density to reect local circumstances. H The word deliverable in that paragraph is explained in a footnotefootnote 11 which states: To be considered deliverable, sites should be available now, o›er a suitable location for development now, and be achievable with a realistic prospect that

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A housing will be delivered on the site within ve years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within ve years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans. Footnote 12 explains the word developable: B To be considered developable, sites should be in a suitable location for housing development and there should be a reasonable prospect that the site is available and could be viably developed at the point envisaged. 9 The policy in paragraph 47 of the NPPF has on several occasions been considered by the courts: see, for example, the Hopkins Homes Ltd case, in particular in the judgment of Lord Gill at paras 76—79; St Albans City Council and C District Council v Hunston Properties Ltd [2014] JPL 599, in particular the judgment of Sir David Keene at paras 23 and 30; and Solihull Metropolitan Borough Council v Gallagher Estates Ltd [2015] JPL 713, in particular the judgment of Laws LJ, at para 16. 10 Paragraph 49 of the NPPF is concerned with development control decision- making. It states:

D Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a ve-year supply of deliverable housing sites. The consequences for a local planning authority of its failing or succeeding in this fundamental requirement of national planning policy need no further explanation by the court: see the Hopkins Homes Ltd case [2017] PTSR 623, in particular the E judgment of Lord Carnwath JSC at para 59, and the judgment of Lord Gill at paras 80—85; and the East Sta›ordshire Borough Council case [2018] PTSR 88,in particular my judgment at para 22. 11 The Planning Practice Guidance (the PPG), rst published by the Government in March 2014, in the section dealing with Housing and economic land availability assessment, para 3-029-20140306, under the heading How is deliverability (1—5 years) and developability (6—15 years) determined in relation to F housing supply?, says that Assessing the suitability, availability and achievability (including the economic viability of a site) will provide the information as to whether a site can be considered deliverable, developable or not currently developable for housing. Para 3-031-20140306, under the heading What constitutes a deliverable site in the context of housing policy?, states: Deliverable sites for housing could include those that are allocated for G housing in the development plan and sites with planning permission (outline or full that have not been implemented) unless there is clear evidence that schemes will not be implemented within ve years. However, planning permission or allocation in a development plan is not a prerequisite for a site being deliverable in terms of the ve-year supply. Local planning authorities will need to provide robust, up to date evidence to support the deliverability of sites, ensuring that their judgements on deliverability are clearly and transparently set out. If there are no signicant constraints . . . to H overcome[,] such as infrastructure[,] sites not allocated within a development plan or without planning permission can be considered capable of being delivered within a ve-year timeframe. Para 3-033-20150327, under the heading Updating evidence on the supply of specic deliverable sites su–cient to provide ve years worth of housing against

' 2018 The Incorporated Council of Law Reporting for England and Wales 141 752 St Modwen Ltd v Communities and Local Govt Secretary (QBD)(QBD)StModwen [2018] PTSR[2018]PTSR Lindblom LJLindblomLJ housing requirements, was published on 27 March 2015, and was thus extant at the A time of the Secretary of States decision in this case. It states: [The NPPF] requires local planning authorities to identify and update annually a supply of specic deliverable sites su–cient to provide ve years worth of housing. As part of this, local planning authorities should consider both the delivery of sites against the forecast trajectory and also the deliverability of all the sites in the ve-year supply. Local planning authorities should ensure that they carry out their annual B assessment in a robust and timely fashion, based on up-to-date and sound evidence, taking into account the anticipated trajectory of housing delivery, and consideration of associated risks, and an assessment of the local delivery record. Such assessment, including the evidence used, should be realistic and made publicly available in an accessible format. 6 2014 The previous version of that paragraph of the PPG, published on March , C stated: [The NPPF] requires local planning authorities to identify and update annually a supply of specic deliverable sites su–cient to provide ve years worth of housing. As part of this, the local planning authority should consider both the delivery of sites against the forecast trajectory and also the deliverability of all the sites in the ve-year supply . . . By taking a thorough approach on an annual basis, local planning authorities will be in a strong position to demonstrate a D robust ve-year supply of sites.

The inspectors report and the Secretary of States decision letter 12 The inspectors report runs to 171 pages. It contains a comprehensive consideration of St Modwens section 78 appeals on their planning merits, recording the parties cases on the principal issues to which those appeals gave rise, and reaching conclusions on each. E 13 The ve main planning issues, identied by the inspector in para 13.5 of her report, included these: (i) the relationship of the proposals to the current and emerging development plan and to national planning policy; (ii) the adequacy of the provision for housing in the East Riding of Yorkshire, including for a›ordable housing, and the contribution which either proposal could make to that supply; (iii) the particular F contribution made by the appeal site to the supply of employment land and to wider economic development objectives, including the potential of the Humber to become established as a centre for renewable energy . . . 14 On the rst of those three issuesthe development plan and national planning policythe inspector said, in para 13.7, that there was no dispute that the proposals conict with the adopted development plan and the emerging local plan. But she was prepared to give them the benet of the presumption in favour of G sustainable development in the NPPFobserving in para 13.10 that that presumption could . . . be engaged by virtue of the fact that some of the relevant policies are out of date. 15 On the second issuethe provision of housing in the East Riding of Yorkshire [ERYC]the inspectors conclusions, in paras 13.63—13.65, were these: 13.63. With regard to the ve-year housing requirement, I consider that the councils gure of just over 10,000 for the housing market area [HMS] is to be H preferred, on the basis that it accords most closely with the relevant national policy and o›ers a reasonably robust, full, objective assessment of need. Use of an HMA-based gure should be understood as part of the rst stage of formulating the requirement according to national policy rather than the second stage of applying a constraint on the basis of local policy making. The Secretary of State

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A may conclude that the requirement should be based on the ERYC administrative area, in which case the councils gure of just under 14,000 is to be preferred over the appellants gure of 15,300. 13.64. The appellants approach to the assessment of housing land supply is fundamentally awed so that the councils assessment of supply, at almost 15,000, is also to be preferred. Thus, whether the analysis is based on the HMA or the ERYC area, I consider that the council has demonstrated the existence of a ve- B year housing land supply. Even if the appellants ve-year housing requirement of 15,300 is taken, the shortfall of 300 would be modest in the context of the overall requirement, making it debatable whether any adverse e›ect on housing delivery due to supply constraints would be identiable in practice. 13.65. Since it has not been shown that there is any pressing need for additional sites to come forward to sustain the local supply of housing, I consider that the appeal proposals would not deliver additional benets by virtue of their C contribution to that supply. The contribution of the proposals to the supply of a›ordable housing is a di›erent matter. Here, signicant need has been demonstrated and it seems likely that such need will persist. For that reason, substantial weight should attach to the proposals, in proportion to the extra contribution they would make to the supply of a›ordable housing. 16 Behind those conclusions lay a much more detailed assessment, some of which I shall need to mention in dealing with the issues before us. D 17 As for the third issueemployment land supply and wider economic development objectivesthe inspector said, in para 13.87, that [the] appeal site comprises a substantial proportion of the Melton site, one of only four key employment sites in the East Riding and one of only two identied for general industrial uses, and that [if] the appeal site was developed for housing, whether along the lines of Appeal A or Appeal B, the status of Melton as a key employment site would be E much diminished so that it would have a signicant, detrimental e›ect on the portfolio of employment land. 18 The inspector set out her Overall Conclusions in section 14 of her report. She conrmed that in her view both of the appeal schemes were in conict with the relevant provisions of the development plan, concluding, in para 14.2, that [the] proposals run counter to local planning policies in three respects: the use F of employment land for housing; the strategy of maintaining a portfolio of employment land; and the location and distribution of residential development, and that they were contrary to the existing and the emerging development plan. She went on to say, in para 14.4, that it was necessary . . . to consider the proposals within the terms of the presumption in favour of sustainable development. Under the heading The benets of the proposals, in para 14.5, she referred to the two G contentions on which St Modwen had relied in asserting an urgent need for housing development: rst, that a signicant shortfall exists in the availability of land for housing; and second that there is an acute need for a›ordable housing. She rejected the rst of those two contentions (in para 14.6), but accepted the second (in para 14.7). As to the rst, she said, in para 14.6: The rst . . . has not been demonstrated. The councils assessment of the position as to the housing requirement and the housing land supply has been H shown to be reasonably robust when tested at this inquiry. This would be the case whether the housing requirement was taken as that for the housing market area or the ERYC administrative area. In either case, a ve-year supply of sites exists. Since the identied supply already satises the test of boosting signicantly the supply of deliverable sites, the proposals would not deliver any additional benet in this respect.

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On the likely adverse impacts of the proposed development, she concluded, in A para 14.10, that [the] proposals would have a signicant, detrimental e›ect on the portfolio of employment land, and would also undermine wider economic development objectives, and, in para 14.16, that a grant of planning permission for either proposal would strike at the heart of key strategic decisions in the emerging ERYC Local Plan, thus undermining the plan-making process, and therefore that the harm by way of prematurity should carry considerable weight. As to [whether] the proposal would represent a sustainable form of development, she concluded, in B para 14.17, that it would not. 19 Finally, in striking [the] overall planning balance, the inspector concluded in para 14.20 that [the] proposals are contrary to the development plan, that [when] considered in the context of the presumption in favour of sustainable development contained in NPPF, these adverse e›ects would signicantly and demonstrably outweigh the benets of each proposal, and that [the] material considerations are not su–cient to warrant a decision contrary to the development C plan. Explaining her Recommendation in the light of those conclusions, she said in para 14.21 that [at] the heart of [the] inquiry was the question of whether the best use for the appeal site at this time would be to continue to hold it in reserve for employment development or to bring it forward now for housing, and that [on] the evidence provided, she considered that the planning case for housing has not been made so that neither appeal should succeed. In para 14.22 she recommended that both appeals be dismissed. 20 In his decision letter the Secretary of State adopted the inspectors D formulation of the main issues in the appeals, and agreed with her principal conclusions upon them. As to [the] development plan and national planning policy, he noted in para 10 that there was no dispute that the proposals conict with the adopted development plan and the emerging local plan and he agreed with the inspector with regard to the weight that this conict should be given. He also agreed with the inspectors conclusion in para 13.10 that, E in accordance with paragraph 49 of the [NPPF], so long as the appeal proposals can be accepted as a sustainable form of development, the planning balance to be applied would be that permission should be granted unless any adverse impacts of doing so would signicantly and demonstrably outweigh the benets. On [the] provision for housing in the East Riding of Yorkshire, he concluded in para 11: F The Secretary of State has carefully considered the inspectors reasoning on housing provision at [paras] 13.11—13.62 and, for the reasons given at [paras] 13.63—13.65, he agrees with her conclusions that the councils gures of a requirement for just over 10,000 dwellings for the housing market and just under 14,000 for the councils administrative area are to be preferred over those put forward on behalf of your client, as is the councils assessment of overall supply, at almost 15,000. Overall, therefore, the Secretary of State agrees with the inspector G that, whether the analysis is based on the Housing Market Area or the councils area, it has not been shown that there is any pressing need for additional sites to come forward to sustain the local supply of housing. However, he also agrees with the inspectors conclusion that substantial weight should attach to the proposals in proportion to the contribution they would make to the supply of a›ordable housing. H And on [the] employment land supply and wider economic objectives, he said in para 12 that he agreed with the inspectors conclusion in para 13.87 of her report that, as the appeal site comprises a substantial proportion of the highly accessible Melton site, it represents a logical choice in relation to the spatial strategy of the

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A emerging local plan with regard to employment land which would be much diminished if the appeal site were to be developed for housingthereby having a signicant detrimental e›ect on the portfolio of employment land. He therefore also agreed with the inspector that, although there is potential for other land to come forward, this would have to be on an ad hoc basis rather than as part of a plan-led approach, potentially causing harm to economic development objectives. In his Overall Conclusions, he said in para 18 that B [although] the provision of new homes, including a›ordable housing, would be an important social and economic benet . . . granting permission for either of the appeal schemes would be contrary to the development plan, so that it is necessary to consider whether there are material considerations su–cient to warrant a decision contrary to that. In para 19 he concluded that C [with] regard to Appeal A . . . the benets of the scheme are signicantly and demonstrably outweighed by the adverse impacts including that on the councils overall spatial strategy for housing, their economic objectives and the portfolio of employment land, and the urbanising impact on North Ferriby, and D [in] the case of Appeal B . . . these disbenets would be compounded by the reduced quantum of housing while the funding for a bridge across the railway line would not be a proportionate or reasonable response to any harm to the supply of employment land. In para 20 he said he agreed with the inspectors recommendations, and therefore dismissed both appeals.

E Ouseley Js judgment 21 In a typically careful judgment, Ouseley J considered the Housing land supply issue in St Modwens challenge under ve headings, two of whichIssue (c): the approach to deliverable sites and Issues (d) and (e): housing record and trajectorylargely embrace the issues now raised in this appeal. 22 Before getting to those two issues, the judge had come to these conclusions, 46 F at para : [The inspector] addressed the issue of whether ERYC had demonstrated that the sites in its ve-year housing land supply gures were deliverable within the requirements of paragraph 47 NPPF and footnote 11. Her approach reects the requirements of paragraph 49 [of the] NPPF and of the PPG. She had evidence on deliverability su–cient to enable her to reach a reasonable planning judgment . . . G There is no criticism of those conclusions in this appeal. 23 On Issue (c): the approach to deliverable sites, Ouseley J said, at paras 49—52: 49. Mr [Christopher] Young contended that the inspector had misinterpreted what deliverable meant in paragraph 47 of the NPPF. This was more an issue about the language she had used in two paragraphs, [13.53 and 13.56], rather H than whether any substantive conclusions showed a misinterpretation of the concept. 50. [Mr Young] submitted that the inspector had erred in drawing a distinction between the supply of housing and the delivery of housing on it. Delivery was at the heart of the NPPF. The inspector had focused on supply and not on deliverable supply. She needed to nd that specic sites were deliverable.

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The argument itself veered somewhat uncertainly between the concepts of A delivery, and deliverability. 51. In my judgment, the inspector made no error of interpretation of the NPPF at all. The NPPF and the assessment of housing land supply are concerned with deliverability, which is an assessment of the likelihood that housing will be delivered in the ve-year period on that site. The assessment of housing land supply does not require certainty that the housing sites will actually be developed within that period. The planning process cannot deal in such certainties. The problem of B uncertainty is managed by assessing deliverability over a ve-year period, re-assessed as the ve-year period rolls forward. The inspector was simply recognising that there is that di›erence, and her focus had to be on deliverability, which was not disproved by showing that there were uncertainties. All this was very much a matter of degree for her. 52. There are many reasons why the di›erence may exist: the assumed production rates o› large sites may be too high for the market, though that does C not seem to have been an issue here; the building industrys infrastructure, skilled labour, nance, and materials, may not be geared up to the assumed rate; and the market may not wish to build or buy houses at the assumed rate of delivery; mortgage funds may not be available for those who would wish to buy. As Mr [Paul] Tucker [QC] pointed out, the local planning authority can only do so much, that is to maintain a ve-year supply of deliverable housing land. The market, comprising house builders, nance and purchasers, has to do the rest. I reject this aspect of ground 1; the inspector made no error of law. D 24 On Issues (d) and (e): housing record and trajectory, in paras 53—59, the judge said: 53. These can be taken together: (d) relates to the way in which the inspector approached ERYCs [ the councils] past delivery of housing, and (e) relates to the trajectory it placed before the inspector, and prepared for the local plan examination. They are also bound up with the other contention, featuring passim E in Mr Youngs argument, that the decision of the inspector was not merely overly generous to ERYC, but was irrational. 54. The essence of (d) was that the supply gures, of 15,000, over ve years or 3,000 a year was far beyond what ERYC had achieved in the past, which was of the order of 650 a year, and of (e) was that it was far ahead of what ERYC was putting forward as its expected production over the ve years. ERYCs April 2014 housing implementation strategy for submission to the local plan examination, in F evidence before the inspector, showed fewer than 1,000 dwellings built in 2013—14, and 1,500 or fewer in each succeeding year until that gure of 1,500 was just exceeded in 2017—18, making a total for the ve relevant years of no more than 7,000 dwellings. 55. Mr Young described ERYC as in e›ect saying that there was a realistic prospect that 3,000 houses a year would be produced, but that it did not regard that as the likely outcome, the outcome that more probably than not would occur. No legally adequate reasons had been given as to how its ve-year housing supply G gures could be reconciled with its past and probable future delivery. 57. NPPF paragraph 47, fourth bullet point, states that local planning authorities should illustrate the expected rate of housing delivery through a housing trajectory for the plan period and set out a housing implementation strategy . . . describing how they will maintain delivery of a ve-year supply of housing land to meet their housing target. 58. Mr Youngs point was not that market factors, such as a spread of H locations, and locations where people actually wanted to live, or the delivery rate of large sites had been unlawfully ignored in the assessment of the sites warranting ERYCs supply gures. Both aspects of this ground went to an argument deployed before the inspector to the e›ect that the housing land supply gures put forward by ERYC were not credible, and the inspector well understood the way the point

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A was being deployed, as her account of St Modwens case and Mr Youngs closing submissions to her showed. His was a simple point, but not a principal important issue, on the credibility of ERYCs judgment; he made it to the inspector, which she rejected, as she was entitled to do in her planning judgment. This point is cousin to issue (c). It is necessary to be cautious lest a point on a section 288 challenge takes a very di›erent shape and emphasis from that which it had before the inspector. B 59. The process for allocating sites in the emerging plan and the sites, albeit in brief, were considered by the inspector and judged to be deliverable. She took account of these issues in reaching that judgment, but she concluded that they did not persuade her that the supply sites were not deliverable. That was a planning judgment for her. The past shortcomings in the supply of land were addressed in the manner required by the NPPF through the 20% bu›er, though of course that can only address a shortfall caused by failings in the supply of deliverable housing C land. The future di›erence between what was deliverable and what would probably be delivered, discussed above, lies at the heart of the di›erence between the housing supply gures and the housing trajectory. This di›erence did not reect, on the inspectors conclusions, a contradiction between her assessment of what was deliverable and what ERYC thought was deliverable, nor did it mean that ERYC was saying one thing to one inspector and something completely di›erent to another. She accepted that ERYC was intending to give great weight to the fact of allocation in the plan when it came to reach its decisions on planning D applications for housing on such sites. So far as deliverability was concerned, which it was her task to consider, that was the second principal point. Thereafter it would be market factors which would lead to delivery. If sites are deliverable, and the problem in delivery is not within the control of the planning authority, for example the cost of housing or the availability of nance, the solution to a problem of delivery is not an increase in the supply of sites which are capable of delivery. The issue raised was not ignored; it was dealt with briey but E su–ciently.

Issue (1)Did the Secretary of State misinterpret or misapply government policy for the supply of housing in paragraph 47 of the NPPF? 25 It is necessary at this stage to look more closely at the inspectors conclusions on the supply of housing land. In the section of her report where she dealt with Planning Policy, she referred in para 4.11 to the policies in paragraphs 47 and 49 F of the NPPF, and summarised them, reminding herself of the requirement in paragraph 47 that local planning authorities should identify a supply of specic, deliverable sites su–cient to provide ve years worth of housing against their housing requirements. She came back to that requirement in para 13.11, where she introduced her conclusions on Issue 2: provision for housing in the East Riding of Yorkshire. As she said in that paragraph, [where] the existence or otherwise of a shortage of land for housing is relevant to an appeal, it is necessary to have regard to G NPPF paragraph 47, which she then paraphrased, and that [as] part of this process, the LPA must identify su–cient sites to provide ve years worth of housing against their housing requirements. 26 The inspector set out the respective positions of the parties by the end of the inquiry in a table in para 13.14 of her report. As she said in a footnote (footnote 146), both the council and St Modwen had followed the policy in paragraph 47 of the NPPF where there has been a persistent record of under delivery and had therefore H adopted a common approach of including the 20% bu›er as part of the calculation of the housing land requirement. The councils position was that the ve-year requirement, for its own area, was 13,957, and for the housing market area, 10,053; St Modwens, that it was 15,312. The parties nal positions on housing land supply were set out in a table in para 13.41: the councils position being that there was a [total] ve-year supply gure of 14,971; St Modwens, that the gure was

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4,734. The principal area of disagreement, as the inspector said in para 13.42, A related to allocations in the emerging local plan, though [to] a lesser extent, there was also disagreement as to allocations in the existing local plan and to larger sites with planning permission. 27 She went on, in paras 13.43—13.55, to deal with those issues. In paras 13.43—13.50, under the heading The approach to allocations in the emerging local plan, she said: 13.43. Footnote 11 of NPPF paragraph 47 states that deliverable sites should B be available, in a suitable location, achievable and have a realistic prospect of being developed . . . Both the appellant and the council draw attention to [the judgment of Stuart-Smith J in Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] JPL 1145]. From this, it appears there are two key points to note with regard to the interpretation of NPPF paragraph 47: rstly, that whether or not a site is deliverable is fact sensitive; and secondly, that inclusion of a site in an emerging local plan is some evidence of C deliverability, since it should normally be assumed that [a local planning authority] will make a responsible attempt to comply with national planning policy. None the less, there are other relevant factors including the plans evidence base, the stage the draft plan has reached and the nature of any objections. 13.44. Pointing to the strong emphasis in NPPF on delivery, the appellant has taken the position that supply will largely consist of sites with planning permission, putting forward a gure of just over 4,700 as the realistic supply. D However, if the exercise is to be fact-sensitive as indicated in the Wainhomes judgment, it follows that sites should not be discounted simply on the basis of a general characteristic such as their planning status. Moreover, there is a fundamental lack of credibility in a gure for a period looking ve years ahead which fails to acknowledge the likelihood that the council will grant at least some planning permissions during that period. In this respect, it should be noted that the appellants own supply gure has had to be revised upwards by a substantial E margin . . . in order to reect this very fact. The appellants approach to deliverability does not achieve the intended aim of providing certainty over the projected ve-year period. 13.45. On the question of the status of sites without planning permission, the appellant draws attention to various appeal decisions, particularly High Peak and Ottery St Mary . . . In contrast, for the two appeals currently under consideration, the councils case is based on all the sites identied in a submission F draft allocations document rather than a small number of strategic sites. The relevant local plan is in the process of being examined and provides a much clearer picture as to technical or viability issues and the nature of any objections. The circumstances are not comparable and a di›erent approach is warranted here, due to the di›erent characteristics of the evidence base and the availability of public responses to the emerging plan. In addition, it seems to me there is a fundamental aw in an approach to the assessment of housing land supply which fails to entertain the possibility that a local planning authority with an identied G need of at least 1,400 dwellings a year and an emerging local plan which provides for 23,800 dwellings may grant at least some planning permissions for residential development over a ve-year period. 13.46. On its own, the absence of a planning permission is not su–cient reason for a site to be categorised as undeliverable. On that basis, I consider that very little weight can be attached to the appellants gures for supply from the existing and emerging local plans [paras 7.107; 9.147—8]. H 13.47. The second point raised from the Wainhomes case is that, in a plan-led system, regard needs to be had to the evidence base of the emerging plan, albeit this depends on context. In this instance, the emerging ERYC local plan makes detailed provision for development over the plan period. Whilst the appellant protests that the detailed evidence base for those allocations was not put to the

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A inquiry, it seems to me that the proper arena to test such detail is indeed the local plan examination. For the purposes of this inquiry, it is su–cient to establish the extent to which reliance may be placed on the emerging local plan. 13.48. The emerging local plan makes provision for 23,800 additional dwellings over the plan period. The council contends that some 11,000 should be considered deliverable over the next ve years. The councils evidence to this inquiry on this point comprises the PSAD dated January 2014, the SHLAA B [strategic housing land availability assessment], which sets out the position at November 2013 and the evidence of Mr Hunt [the councils planning policy manager], particularly appendices L and M (as updated by ERYC 14 and ERYC 25). 13.49. Sites in the PSAD have been subjected to a four-stage assessment which includes deliverability. An example of this can be seen in the discussion of potential sites at Melton at Chapter 3 of Mr Hunts PoE. However, although this C methodology may support inclusion of a site within the emerging local plan, it does not demonstrate the likelihood of its delivery in the next ve years, as indicated by the councils own acceptance that some sites should be discounted. 13.50. Turning to the SHLAA, two key assumptions underpin its reliance on emerging local plan allocations in the ve-year housing land supply gures: that, since few sites require infrastructure to be provided prior to commencement of development, most of the allocations in the emerging local plan can be regarded as D being free from signicant constraints; and that the council is committed to a›ording weight to the emerging local plan when determining planning applications. 28 On the Supply from the emerging local plan she noted, in para 13.52, that the number of sites with planning permission or expected to obtain such permission has risen signicantly (by almost 1,100 in three months) and the trend for those under consideration is also upward. And in para 13.53 she said: E Clearly, given the number of sites involved, it may well turn out that not all allocations currently identied as deliverable will in fact be delivered. However I consider that, overall, the appellant has not shown that this part of the evidence base is lacking in robustness. As a result, the councils gure of 11,156 dwellings on sites identied in the emerging local plan should carry substantial weight [paras 7.104—107; 9.147—151] (Emphasis added.) F In para 7.107, one of the paragraphs in her summary of the councils case on housing land supply, she had said that the big issue between the parties is the extent to which the draft allocations are included within the gures. 29 As for Sites in the existing local plan, the inspector found in para 13.54 that the councils assessment that 612 dwellings could be delivered on these sites is reasonable. And under the heading Lead-in times she accepted, in para 13.55, that the councils gure of 1886 dwellings to be delivered on larger sites . . . appears G to be reasonable. 30 In para 13.56 the inspector turned to The credibility of the supply gure, and said: Whilst the councils supply gure has uctuated over the period of the inquiry, a fair reading of Mr Hunts rst proof shows that the discussion of a 12-year supply took place in the context of the weight which could be attached to sites in H the emerging local plan (StM16). In a situation where a local plan is under preparation, it is not surprising that data will be subject to revision. As such, the uctuations of themselves should not be seen as indicative of a lack of reliability. It is also suggested that the 15,000 gure should be seen as absurd in comparison with the housing trajectory. However, the assessment of supply is distinct from that for delivery [paras 7.101—103; 9.142—144]. (My emphasis.)

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31 Before us, Mr Young repeated the argument on the inspectors alleged A misinterpretation and misapplication of national policy in paragraph 47 of the NPPF rejected by Ouseley J. The argument was largely based on what the inspector said in the two sentences I have emphasised in paras 13.53 and 13.56 of her report. Mr Young submitted that the judge was wrong to uphold the inspectors distinctionwhich the Secretary of State plainly acceptedbetween supply and delivery, by interpreting the concept of a supply of specic deliverable sites su–cient to provide ve years worth of housing (in the second bullet point of B paragraph 47 of the NPPF) as not involving, inevitably, an assessment of what would probably be delivered : para 59 of Ouseley Js judgment. Ouseley Js judgment, said Mr Young, is inconsistent. Although he had recognised (in para 51) that the policy in paragraph 47 of the NPPF is concerned with an assessment of the likelihood that housing will be delivered in the ve-year period on the site in question, he had gone on (in para 59) to conclude, in e›ect, that there is no need for an assessment of what would probably be delivered . This distinction between deliverability and the C probability of delivery was false, and betrayed a misinterpretation of policy in paragraph 47. Properly understood, submitted Mr Young, the policy requires an assessment of what would probably be delivered. It had not been St Modwens case at the inquiry, nor was it now, that there had to be certainty of delivery. And, Mr Young conrmed, it was no longer their position that, to be included in the assessment, a site had to have planning permission for housing development. 32 I cannot accept those submissions. In my view it would have been most D surprising if the Secretary of State had gone astray in his understanding and application of these fundamental components of national planning policy for the supply of housing, contained as they are in the Governments primary policy document for the planning system in England, which had been published some three years before he came to make his decisions in this case. Nor is it likely that an experienced inspector would err in that way: see the judgment of Lord Carnwath JSC in the Hopkins Homes Ltd case [2017] PTSR 623, para 25. I think the court should E approach arguments like this with great hesitation. Here I am in no doubt that the argument is bad; that neither the inspector nor the Secretary of State misinterpreted or misapplied the relevant concepts and requirements in NPPF policy, or failed to express their conclusions with completeness and clarity; and that the judge was therefore right, essentially for the reasons he gave. 33 It is important to keep in mindas Ouseley J said in the second sentence of para 49 of his judgmentthat Mr Youngs argument here is really directed at the language used by the inspector in paras 13.53 and 13.56 of her report. It does not F attack her substantive conclusions on the deliverability of housing sites. Nor does it cast doubt on her conclusions, fully adopted by the Secretary of State, on the adequacy of the relevant housing supply when measured against the ve-year housing requirementspecically, that the councils gure of just over 10,000 for the housing market area is to be preferred, on the basis that it accords most closely with the relevant national policy and o›ers a reasonably robust, full, objective assessment of need (para 13.63 of the inspectors report);that if the Secretary of State were to G conclude that the housing requirement should be based not on the housing market area, but on the councils administrative area, the councils gure of just under 14,000 is to be preferred over the appellants gure of 15,300 (para 13.63); that St Modwens approach to the assessment of housing land supply is fundamentally awed so that the councils assessment of supply, at almost 15,000, is also to be preferred (para 13.64); that, whether the analysis was based on the housing market area or on the councils administrative area, the council has demonstrated the H existence of a ve-year housing land supply (para 13.64); that [even] if [St Modwens] ve-year housing requirement of 15,300 is taken, the shortfall of 300 would be modest in the context of the overall requirement (para 13.64); and that it had not been shown that there [was] any pressing need for additional sites to come forward to sustain the local supply of housing (para 13.65).

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A 34 Those conclusions were as rm an endorsement of the councils case on housing land supply, and as rm a rejection of St Modwens, as one could imagine. All of them, together with the assessment on which they were based, were expressly supported by the Secretary of State in para 11 of his decision letter. They are not in themselves said to be unlawful. Nor could they be. They are, all of them, perfectly secure as matters of planning judgment, and not in any way vulnerable in proceedings such as these. I therefore agree with the judges conclusions in paragraph 46 of his B judgment, which were crucial, andas I have saidare not the subject of any criticism before us. 35 That is the context in which this issue in the appeal has to be considered. It lends an air of inconsequence, even unreality, to the argument put forward. But in any case, as was submitted both by Mr Richard Honey for the Secretary of State and by Mr Tucker for the council, the argument itself is mistaken. Its fatal defect lies in its misreading of the policy in paragraph 47 of the NPPF. It misses the essential distinction between the concept of deliverability, in the sense in which it is used in the C policy, and the concept of an expected rate of delivery. These two concepts are not synonymous, or incompatible. Deliverability is not the same thing as delivery. The fact that a particular site is capable of being delivered within ve years does not mean that it necessarily will be. For various nancial and commercial reasons, the landowner or housebuilder may choose to hold the site back. Local planning authorities do not control the housing market. NPPF policy recognises that. 36 Where the policies in paragraphs 47 and 49 of the NPPF are concerned with D the composition of the ve-year supply of housing land, they are consistently worded to refer to a supply of housing sites that can be regarded as deliverable, not sites that are regarded as certain to be delivered. Thus, in the second bullet point of paragraph 47 the local planning authoritys task is to identify and update annually a supply of specic deliverable sites su–cient to provide ve years worth of housing against their housing requirements (my emphasis)with the appropriate bu›er (whether 5% or 20%), whereas in the third bullet point, the requirement for E subsequent years (years 6—10 and, where possible . . . years 11—15) is for the identication of specic sites that are developable, or broad locations for growth. And in the policy in paragraph 49 the implicit requirement is the same, namely that the authority must be able to demonstrate a ve-year supply of deliverable housing sites (my emphasis). By contrast, the policy for the housing trajectory in the fourth bullet point of paragraph 47 is not expressed in terms either of deliverable or of developable sites as such, but in terms of illustrating the F expected rate of housing delivery (my emphasis). 37 That those who drafted the policies in paragraph 47 and 49 of the NPPF intended to refer to deliverable sites and deliverable housing sites where they did, with a meaning distinct both from that of the expression developable sites and also from the idea of an expected rate of housing delivery, is conrmed by their having taken the trouble to dene the word deliverable so precisely in footnote 11, and the word developable in footnote 12. Had the Governments intention been to frame the policy for the ve-year supply of housing land in terms of a test more demanding G than deliverability, this would have been done. 38 The rst part of the denition in footnote 11amplied in paras 3—029, 3—031 and 3—033 of the PPGcontains four elements: rst, that the sites in question should be available now; second, that they should o›er a suitable location for development now; third, that they should be achievable with a realistic prospect that housing will be delivered on the site within ve years; and fourth, that development of the site is viable (my emphasis). Each of these considerations goes H to a sites capability of being delivered within ve years: not to the certainty, oras Mr Young submittedthe probability, that it actually will be. The second part of the denition refers to [sites] with planning permission. This clearly implies that, to be considered deliverable and included within the ve-year supply, a site does not necessarily have to have planning permission already granted for housing development on it. The use of the words realistic prospect in the footnote 11

' 2018 The Incorporated Council of Law Reporting for England and Wales 151 762 St Modwen Ltd v Communities and Local Govt Secretary (QBD)(QBD)StModwen [2018] PTSR[2018]PTSR Lindblom LJLindblomLJ denition mirrors the use of the same words in the second bullet point in A paragraph 47 in connection with the requirement for a 20% bu›er to be added where there has been a record of persistent under delivery of housing. Sites may be included in the ve-year supply if the likelihood of housing being delivered on them within the ve-year period is no greater than a realistic prospectthe third element of the denition in footnote 11 (my emphasis). This does not mean that for a site properly to be regarded as deliverable it must necessarily be certain or probable that housing will in fact be delivered upon it, or delivered to the fullest extent B possible, within ve years. As Lord Gill said in the Hopkins Homes Ltd case [2017] PTSR 623, para 78 when referring to the policies in paragraph 47 of the NPPF, the insistence on the provision of deliverable sites su–cient to provide ve years worth of housing reects the futility of local planning authorities relying on sites with no realistic prospect of being developed within the ve-year period. 39 One must keep in mind here the di›erent considerations that apply to development control decision-making on the one hand and plan-making and C monitoring on the other. The production of the housing trajectory referred to in the fourth bullet point of paragraph 47 is an exercise required in the course of the preparation of a local plan, and will assist the local planning authority in monitoring the delivery of housing against the plan strategy; it is described as a housing trajectory for the plan period (my emphasis). Likewise, the housing implementation strategy referred to in the same bullet point, whose purpose is to describe how the local planning authority will maintain delivery of a ve-year supply of housing land to meet their housing target is a strategy that will inform the preparation of a plan. D The policy in paragraph 49 is a development control policy. It guides the decision- maker in the handling of local plan policies when determining an application for planning permission, warning of the potential consequences under paragraph 14 of the NPPF if relevant policies of the development plan are out of date. And it does so against the requirement that the local planning authority must be able to demonstrate a ve-year supply of deliverable housing sites, not against the requirement that the authority must illustrate the expected rate of housing delivery through a housing E trajectory for the plan period. 40 We are concerned with the alleged unlawfulness of a development control decision. In the light of a proper understanding of the policies in paragraphs 47 and 49 of the NPPF, in particular those pertaining directly to development control decision-making, was the judges approach to that allegation misguided? In my view it plainly was not. 41 13 53 When the two sentences on which Mr Young concentrated in paras . F and 13.56 of the inspectors report are read fairly in their full context, they do not, in my view, reveal any misunderstanding of NPPF policy. The inspector was clearly alive to the distinction between deliverability and actual delivery, and had well in mind that deliverability entailed a realistic prospect of the site being delivered. She was entitled to conclude, as a matter of planning judgment, that given the number of sites involved, it may well turn out that not all allocations currently identied as deliverable will in fact be delivered (para 13.53), and, again as a matter of planning judgment, that the councils housing supply gure of 15,000 dwellings G was not undermined by its housing trajectory, given that the assessment of supply is distinct from that for delivery (para 13.56). Indeed, those conclusions were as much statements of common sense as they were of planning judgment. In coming to them, the inspector did not dilute the test of deliverability provided for in paragraph 47 of the NPPF. It is plainfor example, in paras 13.11 and 13.43 of her reportthat she had a sound understanding of the policy in paragraph 47, and that this lay behind her conclusions in paras 13.43 to 13.56, and, in particular, the distinction she drew in H paras 13.53 and 13.56 between deliverability and the actuality of delivery. And the reasons she gave for those conclusions, and more generally in her treatment of the housing land supply issue, were adequate and clear. 42 Ouseley J was, in my view, undoubtedly right to conclude that the inspector and the Secretary of State did not misinterpret or misapply the NPPF policies in play,

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A and that the relevant questions on deliverability and delivery were tackled lawfully. His grasp of the distinction between those two concepts is obvious both in para 51 and in para 59 of his judgment. There is no inconsistency of the kind complained of by Mr Young, either in those two paragraphs or elsewhere in the judgment. The judge did not suggest that in assessing deliverability a local planning authority should leave entirely to one side any di–culties beyond their control. But, as he said in para 51, the assessment of housing land supply is concerned with B deliverability and does not require certainty that the housing sites will actually be developed within [the ve-year] period, and that, as the inspector recognised, deliverability. . . was not disproved by showing that there were uncertainties. 43 The judge was not drawn beyond the courts proper role in reviewing a planning decision. What he said in para 59 of his judgment was correctthat the evaluation of housing land supply involved the exercise of planning judgment, having regard to the allocation of sites for housing development in the emerging local C plan; that the di›erence between what was deliverable and what would probably be delivered . . . lies at the heart of the di›erence between the housing supply gures and the housing trajectory; that this di›erence did not reect, on the inspectors conclusions, a contradiction between her assessment of what was deliverable and what [the council] thought was deliverable ; that where deliverability was concerned, the inspector had accepted that [the council] was intending to give great weight to the fact of allocation in the plan when it came to reach its decisions on planning applications for housing on such sites; that where delivery was D concerned, she recognised that market factors, which were not in the councils control, would play their part; and that the solution to a problem of delivery is not an increase in the supply of sites which are capable of delivery. 44 In my view therefore, the appeal cannot succeed on grounds 5 and 6.

Did the Secretary of State misdirect himself on the councils housing trajectory? 45 E Mr Young submitted that the inspector, and in turn the Secretary of State, failed to take into account the councils housing trajectory in gure 1 of its East Riding Proposed Submission Local PlanHousing Implementation Strategy (2012—2029) of April 2014 as compelling evidence of its inability to demonstrate the requisite ve-year supply of deliverable housing sites. That evidence had generated an important issue in the appeals, which the inspector should have addressed, in clear and adequate reasons. The judge, at para 58, was wrong to describe it as not a principal important issue. It was undeniably an important issue in a case such as F this. The housing trajectory, said Mr Young, is the beating heart of the policies in paragraph 47 of the NPPF. Here, he submitted, it was the most critical piece of evidence on housing land supply. Yet the inspector seems to have ignored it, failing to see its true signicance and avoiding the dichotomy of gures presented to her by the council. The only possibly relevant reasons are in the nal sentence of para 13.56 of her report, where she said that the assessment of supply is distinct from that of delivery. That paragraph seemed to be dealing with a di›erent matterthe G uctuations in the councils housing supply gures, rather than with the housing trajectory itself. Even so, submitted Mr Young, its nal sentence revealed a misunderstanding of NPPF policy for the preparation of a housing trajectory; it did not provide the intelligible and . . . adequate reasons required on a principal important controversial [issue] (as Lord Brown of Eaton-under-Heywood put it in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, 1964D); and the absence of proper reasons indicates a failure to have regard to a material H consideration. 46 I am unable to accept that argument. It is, in part, a reprise of the submissions I have already rejected on the previous issue. I am not going to repeat what I have already said, except that in my view the inspectors and Secretary of States interpretation and application of government policy in paragraphs 47 and 49 of the NPPF, including the policy on the preparation of a housing trajectory in the

' 2018 The Incorporated Council of Law Reporting for England and Wales 153 764 St Modwen Ltd v Communities and Local Govt Secretary (QBD)(QBD)StModwen [2018] PTSR[2018]PTSR Lindblom LJLindblomLJ fourth bullet point of paragraph 47, were legally impeccable. But there are four short A conclusions to add. 47 First, it is wrong to describe the councils housing trajectory as having been, in itself, a principal important controversial [issue]. Evidence was given about it at the inquiry, certainly, and submissions were made in closing. But it was only one feature of the case put before the inspector on housing land supply. She had regard to it as a material consideration, which bore on the question of whether the councils gures for housing land supply were credible. Ouseley Js conclusions to this e›ect in B para 58 of his judgment are correct. In these proceedings before the court the importance of the housing trajectory has been elevated to a signicance it simply did not have in evidence and submissions at the inquiry. This was not conceded, but it seems quite plain. And I agree with the judges comment that one must be cautious lest a point on a [section] 288 challenge takes a very di›erent shape and emphasis from that which it had before the inspector. That is what has happened here. 48 Secondly, the inspector understood what St Modwen were saying about the C housing trajectory, which was that it served to demonstrate a lack of credibility in the councils case on housing land supply. Mr Justin Gartland of Nathaniel Licheld & Partners, who gave planning evidence on behalf of St Modwen at the inquiry, had described the use of the housing trajectory as a reality check (as he conrms in para 95 of his witness statement of 14 August 2015). The inspector knew what was being suggested. The relevant submission made by Mr Young at the end of the inquiry appeared in a single paragraphpara 295of a lengthy closing speech, 377 paragraphs in all. It came shortly after another submission on credibility, in D para 291(vi)that the councils supply gure has uctuated to such an alarming degree that it . . . lacks any credibility. It acknowledged the role of the housing trajectory in the councils plan-making process. It was, as Mr Young said, contained in the councils housing implementation strategy (ERYC 32) published as part of the [local plan] evidence basewhich conrms, in para 2.10, that [the] housing trajectory in gure 1 . . . shows how the council plans to manage the delivery of housing over the plan period. E 49 In para 9.144 of her report, when summarising St Modwens case on housing land supply, the inspector recorded what Mr Young had submitted: Another major problem with the credibility of the councils own housing supply gures is the trajectory in the housing implementation strategy, which shows delivery in 2013—2014 at less than 1,000 units (and closer to 800), followed by less than 1,400 for the following two years. The gure is 1,500 for 2016—17 and marginally higher than that in 2017—2018. That is a supply of about 6,500 to F 7,000 in the next ve years on the basis of its own evidence to the local plan examination. This was a true reection of the way in which the point had been put to her, in support of the argument that the councils position on housing land supply lacked credibility and should not be accepted, and with emphasis on the supply gure of a maximum of 7,000. In fact, it was almost an exact quotation of the submission made by Mr Young in para 295 of his closing speech. G 50 The inspector went on to record St Modwens main argument on housing land supply, which included these points: that St Modwen had examined the councils delivery on the basis of just sites with planning permission and no discounting and projecting forward past delivery (para 9.146 of her report); that [the] supply of housing should be assessed on what is available now and that will largely be sites with planning permission (para 9.147); that it is inappropriate to include sites without planning permission or even a resolution to grant unless there is H very clear evidence supporting the delivery of that site in the next ve years (para 9.148); that [St Modwen] has elected not to accept any of the sites without planning permission or a resolution to grant (para 9.149); that [St Modwen] believes that the councils supply of housing land is around 5,000 dwellings, that this was woefully inadequate, and that it was clear that the council has nothing

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A like a ve-year supply of housing land (para 9.154). That was the gist of St Modwens case on housing land supply, which the inspectorand the Secretary of Staterejected. No complaint is or could be made about the inspectors recording of it, nor can it be said that she failed to understand it or failed to address it. 51 Thirdly, it is not open to St Modwen now to go behind the inspectors conclusions on the credibility and reliability of the parties respective cases on housing land supply, which she reached in the light of all the relevant evidence, B including the councils housing trajectory. Such conclusions are well within the exclusive province of planning judgment: see, for example, my judgment in Oadby and Wigston Borough Council v Secretary of State for Communities and Local Government [2017] JPL 358, para 33 and the rst instance judgments of Stuart- Smith J in Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government [2013] JPL 1145, paras 35 and 54, and Dove J in Eastleigh Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 4225 (Admin) at [13] and [15]. For the court to venture C there would be to trespass beyond its jurisdiction in the review of planning decisions: see paras 6—7 above. 52 Fourthly, it is pointless to rehearse the evidence and submissions presented to the inspector on the councils housing trajectory in an attempt to persuade the court that her conclusions on housing land supply, shared by the Secretary of State, are somehow legally awed. They are not legally awed. On a fair reading, they are all well within the range of lawful planning judgment. As Ouseley J accepted, the D discussion of the parties evidence and submissions, in paras 13.41—13.56 of the inspectors report, and her conclusions in paras 13.63—13.65, are unassailable. Her conclusions are comprehensive and cogent, and are expressed in clear and adequate reasons. And they are not undone by a failure to take into account, as a material consideration, the councils housing trajectory, or by irrationality in the weight given to it. 53 As to the approach to sites allocated in the emerging local plana matter at E the heart of the parties dispute on the existence or not of a ve-year supply of housing landthe inspectors conclusions in paras 13.43—13.53 of her report, including her conclusion in para 13.53 that it may well turn out that not all allocations currently identied as deliverable will in fact be delivered, are faithful to the relevant policy in paragraph 47 of the NPPF, and, in law, unimpeachable. Her focus on the crucial question of deliverability, and her application of NPPF policy on that question, cannot be faulted. 54 13 56 F Having set out those conclusions, the inspector went on in para . to consider the credibility of the housing supply gures presented on either side. She referred at the end of that paragraph to her summary of St Modwens case in paras 9.142—9.144. As her conclusions show, she did not accept that the councils housing trajectory disproved its case on supply. This was a planning judgment she could properly make on the evidence and submissions before her. In making it, she demonstrably had regard to the housing trajectory as a material consideration; she referred to it directly. And she gave it the weight she judged to be right in view of G its status and role. 55 Her relevant reasons, read as a piece, are an ample explanation of her conclusions. Individual sentences in them should not be separated from their full context. In terms that were crystal clear, she disposed of the argument that the councils housing supply gure lacked credibilityor reliability. She distinctly preferred the councils case to St Modwens, nding herself able to conclude, in para 13.64, that the council had demonstrated the existence of a ve-year housing H land supply. 56 That, in the end, was how she resolved the question of credibility, which required her to decide, on all the evidence and submissions she had heard on housing land supply, which sides case she was able to believe. The relevant planning judgment, which the Secretary of State accepted, fell very clearly in favour of the case put forward by the council. It cannot be disturbed in a legal challenge.

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57 I conclude, therefore, that Ouseley Js conclusions on this part of A St Modwens challenge are valid, and that these four grounds of St Modwens appealgrounds 1 to 4must also fail.

Did the Secretary of State err in his conclusions on the councils record of housing delivery? 58 Mr Youngs argument on this issuethe issue in ground 7began with the submission that Ouseley J should not have thought that the inspectors failure to B confront the councils past shortcomings in the supply of land could be overcome by the application of the 20% bu›er. The inspector had not explained how in her view the councils claimed ve-year supply of 15,000 dwellings could be squared with its local delivery record of 1,000 dwellings a year, and even less than that in the ve years preceding the inquiry. Here again there was a failure to have regard to a material consideration. The councils local delivery record was, said Mr Young, absolutely central in St Modwens case on housing land supply. But the inspector C did not grapple with it. Before us, however, Mr Young concentrated on a di›erent theme, not pursued before Ouseley J — that neither the inspector nor the Secretary of State had dealt with the now current guidance in the PPG under the heading Updating evidence on the supply of specic deliverable site su–cient to provide ve years worth of housing against housing requirements. This revised passage in the PPG had been published after the inquiry, and after the inspector submitted her report to the Secretary of State, but before he issued his decision. In the D circumstances, Mr Young submitted, the Secretary of State ought to have dealt with it. 59 These arguments I also reject, for reasons similar to those I have given in discussing the previous two issues. 60 Here again one must take a fair-minded approach to the inspectors conclusions. The judge plainly did that in paras 53—59 of his judgment. As he recognised, the evidence on the councils record of housing delivery, like the evidence E on its housing trajectory, went to the credibility and reliability of its gures for housing land supply. And, as he found, that question was su–ciently and lawfully addressed by the inspector in paras 13.41—13.56 and 13.63—13.65 of her report, and the reasons she gave were legally good. I agree with him. 61 As Mr Honey submitted, the councils housing trajectory looked forward in time, its housing record back. But the question of the deliverability of housing sites, the essential question for the inspector in considering the parties cases on the ve-year supply of housing land, required her to exercise her planning judgment. This had now F to be done in the light of the emerging local plan, with its new policies for housing development and its new allocations of land for such development. In doing it, the inspector did not ignore the councils housing record. She had regard to it, though correctlynot as a principal important controversial issue. Her summary of St Modwens casein particular in paras 9.142—9.144 of her report, to which she referred in para 13.56, included these points: that the councils claim to have a ve- year housing supply of in excess of 15,000 dwellings was utterly implausible on the G available evidence (para 9.142), since this represented a supply of over 3,000 houses a year and [the] councils past track record shows it has never delivered houses in that quantity (para 9.142(i)); that the available evidence from [Mr Hunt] is that completions up until April 2014 are still below the [regional strategy] requirement of 1,150 (para 9.142(ii)); that against a requirement of 3,500 completions a year, the council has delivered an average of just 635 a year over the last ve years (para 9.142(iii)); that for the years between 2004 and 2008 there had been an annual H delivery rate of 1,495 (para 9.142(iv)); that the annual delivery rate for the period 2004 to 2013 was 1,017 (para 9.142(v)); and that the council accepts the record of persistent under delivery (para 9.143). She had these points in mind when she reached her conclusions in para 13.56, and in para 13.64. Plainly, they did not dissuade her from the view that the council had, as she said in para 13.64,

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A demonstrated the existence of a ve-year housing land supply. This was her ultimate planning judgment on the housing land supply issue. I see no reason for the court to interfere with it. 62 I do not accept that, in para 59 of his judgment, Ouseley J acquitted the inspector of error in dealing with the councils record of housing delivery merely on the basis of the 20% bu›er required in cases where there has been a record of persistent under delivery. That notion is misconceived. To see why the judge found B against St Modwen on this issue one must read the whole of his conclusions in paras 53—59 of his judgment. His reference to the 20% bu›er in paragraph 59 was entirely legitimate. What he said was that [the] past shortcomings in the supply of land were addressed in the manner required by the NPPF through the 20% bu›er. He was right. As Mr Honey submitted, the 20% bu›er is a mechanism to address historic under delivery, its purpose being to provide a realistic prospect of achieving the planned supply. With this in mind, the judge was merely acknowledging, correctly, that the council had accepted the need for a 20% bu›er to C be applied in this case. This concession is referred to in para 7.103 in the inspectors summary of the councils case on housing land supplyone of the paragraphs mentioned at the end of para 13.56where she had recorded the councils acceptance of a 20% bu›er. It is also acknowledged in para 13.14, where she set out the parties respective positions on the housing land requirement, conrming in a footnote their common approach of including the 20% bu›er. In my view therefore, Mr Youngs submission here does not begin to prove any error of law. D 63 Lastly, the argument that the Secretary of State failed to apply the revised guidance in the PPG a›ords no basis for quashing his decision. The revised guidance refers to a local planning authoritys local delivery record, but the thrust of it, at least for a development control decision, is not materially di›erent from the previous guidance. And it cannot be said that the inspectors conclusions on the issue of housing land supply, or the Secretary of States, could conceivably have been di›erent if the new guidance had been explicitly taken into account. Those conclusions, as E I have said, were lawfully reached in the light of the councils housing trajectory and local delivery record. There is, in my view, nothing in this point at all.

Conclusion 64 For the reasons I have given I would dismiss this appeal.

MCCOMBE LJ F 65 I agree.

JACKSON LJ 66 I also agree.

Appeal dismissed.

G ISOBEL COLLINS, Barrister

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Status: Positive or Neutral Judicial Treatment *334 Carpets of Worth Ltd. v Wyre Forest District Council

Court of Appeal 12 March 1991

(1991) 62 P. & C.R. 334

( Purchas , Taylor and Beldam L.JJ. ): March 12, 1991 Town and country planning—Development plan identified green belt—Applicant's land not included—Subsequently included in green belt by local plan—Whether boundaries of green belt to be changed only in exceptional circumstances The applicant owned some 20 acres of land in the Stour Valley, Kidderminster, the southern part of which (seven acres) was occupied by a factory and the northern part of which (13 acres) was open land. Originally the northern land was not included in the green belt in the existing development plan prepared by the county council under the pre-1971 legislation and subsequently amended. In 1985 the Secretary of State approved the Hereford and Worcester structure plan showing the general position of the green belt. This plan was prepared by the local planning authority in accordance with the provisions of the Town and Country Planning Act 1971 . However, in 1986 the applicant's northern land was included in the green belt by the respondent in its local plan proposals at the request of the county council. The boundaries to the green belt as defined in an earlier approved development plan were thus altered. An objection to this change lodged by the applicants at the local plan inquiry was rejected by the inspector and the plan was subsequently adopted. The application challenging the adoption of this part of the local plan, on the ground that it was not within the powers conferred by the Town and Country Planning Act 1971 , was dismissed by Otton J. 1 The applicants appealed on the ground that ministerial policy on green belts in planning policy guidelines and circulars and particularly the policy set out in Circular 14/84, para. 3(a) , that green belt boundaries should only be altered in exceptional circumstances, had not been adequately considered and applied. The respondent contended that alterations to the boundary of a green belt which had the effect of extending, as opposed to reducing it, did not require justification by exceptional circumstances. Held, allowing the appeal, that although ministerial circulars and planning policy guidelines had no formal statutory force the local planning authority was under a statutory obligation to have regard to them under the Town and Country Planning Act 1971, s.11(9) , when formulating its proposals in a local plan and if the authority wished to depart from such policies it had to give clear reasons for doing so. The extension of a green belt prejudiced landowners in the otherwise proper development of their land, just as a reduction in it would prejudice the purposes of the green belt, and must equally be justified by exceptional circumstances as required by para. 3(a) of Circular 14/84 . Neither the inspector nor the local planning authority had had regard to this paragraph and so the relevant part of the local plan must be quashed. It was conceded that there were no exceptional circumstances. PerPurchas L.J.: There are two obvious qualifications to the principle that green belts should only be altered in exceptional circumstances. First, if as a result of the supervening structure plan green belt boundaries shown in an earlier development plan become meaningless or anomalous; secondly if the structure plan for the area concerned has not been approved, then none of the provisions of paragraph 3(a) apply. *335

Case cited:

Gransden & Co. Ltd. v. Secretary of State for the Environment (1987) 54 P. & C.R. 361, C.A.; affirming 54 P. & C.R. 86 .

158 Page 2

Legislation construed:

Town and Country Planning Act 1971 (c. 78) s.11(9) . This provision is set out infra .

Appeal by the applicant Carpets of Worth Ltd. against a decision of Otton J. on March 7, 1990 ( (1991) 61 P. & C.R. 57 ) in which he dismissed their application under section 244 of the Town and Country Planning Act 1971 , challenging the validity of part of the local area plan of Wyre Forest District Council, which altered the green belt boundary as approved in the existing development plan so as to incorporate land at Puxton Lane, Kidderminster, owned by the applicant into the green belt. The applicant contended that regard had not been given to ministerial policy relating to the treatment of green belt proposals in local plans as disclosed particularly in Circular 14/84, para. 3(a) which provided that once approved, boundaries should not be altered, except in exceptional circumstances. Representation

Brian Ash, Q.C. and Joseph Harper for the appellant (applicant).

Christopher Wilson-Smith, Q.C. and Philip Mott for the respondent.

Purchas L.J.

This is an appeal by Carpets of Worth Ltd. (“Worth”) from an order of Otton J. 2 made on March 7, 1990, dismissing their application under section 244 of the Town and Country Planning Act 1971 (“the 1971 Act”). Worth seek to challenge part of the local plan made by the Wyre Forest District Council (“the council”) which affected their land at Puxton Lane, Kidderminster. The appeal raises a single issue of importance touching upon the effect to be given to a provision of Circular 14/84 entitled “Green Belts” issued by the Secretary of State for the Environment, to whom and to whose predecessors in office I shall refer as “the minister.” It is common ground between Mr. Wilson-Smith, Q.C. who appeared for the council and Mr. Ash who appeared for Worth that if the construction to be given to paragraph 3(a) of that circular is that for which Mr. Ash contends, this appeal succeeds but if the construction for which Mr. Wilson-Smith contends succeeds, then the appeal must fail. The position as thus agreed by counsel would appear happily to restrict the area for consideration by the court. It is accepted by both parties that in the exercise of their function as a local planning authority the council must “have regard to ‘the provisions of circulars and similar documents called planning policy guidance (P.P.G.s) issued by the, Minister.’” These documents announced the policy of the minister on the particular topics to which the circulars or P.P.G.s were directed. The statutory basis'for the proposition that these documents must be considered is to be found in section 11(9) of the 1971 Act:

11 (9) In formulating their proposals in a Local Plan the Local Planning authority shall secure that the proposals conform generally to the Structure Plan as it stands for the time being (whether or not it has been approved by the Secretary of State) and shall have regard to any information and any other consideration which appear to them to be *336 relevant, or which may be prescribed, or which the Secretary of State may in any particular case direct them to take into account.

“Prescribed” means prescribed by regulations made by the Secretary of State under the Act (see s.290(1) ). The expression “Directions in any particular case” has not been defined either statutorily or by authority and there must be some doubt as to whether it can embrace circulars or P.P.G.s. For the purpose of this judgment I shall assume that it does not. The current views of

159 Page 3 the minister as expressed in the circulars and the P.P.G.s can only be material to the duties upon the council under section 11(9) as being “any information and any other consideration which appear to them to be relevant.” Prior to the coming into effect of the code provided by the 1971 Act, planning authorities in the counties ( i.e. the county councils) had the responsibility of preparing development plans for their respective areas. These descended to detail only as to boundaries and areas; but were supplemented by local town plans where appropriate. The development plans, inter alia , defined where the boundaries should be drawn between the green belt areas and areas zoned for other types of development. The green belt policy and the related development control policies were introduced in 1955. Under provisions of Part II of the 1971 Act it was the duty of the local planning authority, which in the present case was the Worcester and Hereford County Council (“the county council”), to prepare a structure plan. The statutory provisions requiring the appropriate survey, consultation, etc., leading to the submission of the draft structure plan by the county council to the minister for approval or rejection are to be found in sections 6 to 9 of the 1971 Act. Section 10 dealt with the subsequent alteration of structure plans once approved. The provisions relating to the preparation of local plans are contained in sections 11 to 15 of the 1971 Act. The preparation of a local plan was generally speaking a voluntary matter depending upon the decision of a local planning authority which could be either the county council or a district council within the county. See section 3 of the 1971 Act. Worth's land at Puxton Lane, Kidderminster, was effectively divided into two sections. The southern part of about seven acres was at all material times occupied by their factory and warehouse premises. The northern part, consisting of some 13 acres or thereabouts, was open land lying immediately to the west of the River Stour. This appeal is concerned solely with the northern part. On the east side of the River Stour, speaking in very rough terms, lay further open ground between the river and the Staffordshire and Worcestershire Canal, and further to the east was urban open development such as playing fields, etc., before the residential development of Kidderminster even further to the east was reached. There was also to the west of the site residential development of Kidderminster. Again speaking in very general terms the open type development, the river, canal and other land formed an “inlet” of undeveloped land between the eastern and western residential developments. This has been described as a “wedge” and I shall refer to it as such hereafter in this judgment. The word “wedge” although used in planning parlance is not a term of art and has no statutory significance. The development plan had been prepared by the Worcestershire County *337 Council under the pre-1971 legislation. It showed a green belt area running generally north of Kidderminster. It was subject to a number of amendments. The relevant amendment for this appeal was Amendment No. 22 which was approved in 1977. This showed the southern boundary for the green belt to the north of Kidderminster as running east to west in a general line tangential to the northern limits of the existing residential developments in the western and eastern parts, but it did not include the wedge. It ran across the northern base of the wedge. Worth's land was therefore excluded from the green belt. In November, 1982, the county council published draft proposals for a green belt local plan covering the whole county. This included a map (“Map 35”) showing an alteration locally to the pre-existing green belt boundary to the north of Kidderminster which had been approved in Amendment No. 22. Generally speaking it extended the green belt to include the wedge. It was described as “Proposal 24” which read:

Location: The Stour Valley between the Franche area and Broadwaters area. It is proposed that the open land on either side of the River Stour, with the exception of the areas already laid out as urban open spaces, should be included in the Green Belt. To protect this potentially attractive open area, it is considered that the areas already laid out for urban open space purposes are adequately protected from building development.

Nothing seems to have come of this proposal. Perhaps it was overtaken in the general process of preparing and submitting the draft structure plan for approval by the Secretary of State. This was finally approved in September 1985.

160 Page 4

In accordance with their duties under the 1971 Act the county council prepared a structure plan. This was published in October, 1985 as approved by the Secretary of State. A key diagram which accompanied the plan when submitted for approval showed only the general position of the green belt and is referred to in paragraph 9.6 of the Secretary of State's letter:

9.6 On the key diagram which accompanied the submitted structure plan, the County Council had shown the general area of the Green Belt between Droitwich and Worcester, as extending as far west as the River Severn. In the approved Worcestershire Structure Plan the extent of the Green Belt lay generally between the M5 Motorway to the east and the Birmingham to Worcester railway line to the west. The Secretary of State proposes to confine the Green Belt generally to the area in the approved Structure Plan. The Secretary of State is committed to the preservation of the Green Belt and considers that for Green Belts to maintain their credibility, once their general extent has been approved as part of the Structure Plan for the area, they should be altered only in exceptional circumstances. He is aware that precise Green Belt boundaries remain to be determined in this area and that this exercise, which should be done through the Local Plan process, may involve some adjustment at the margins of the Green Belt as shown in the Structure Plan. However, he considers that the proposed alteration of the extent of the Green Belt in the plan as submitted goes further than a marginal adjustment. He does not consider that the *338 basic principle of Green Belt (preventing the coalescence of settlements) is at risk for the whole of the area.

On May 28, 1986, the council published a draft of its proposed local plan. This did not follow the proposals in the draft county council plan so as to include the applicant's land in the proposed green belt. This prompted representations from the county council. In the light of these and other objections the council published a further draft plan which became part of the statutory consultative procedure. On this plan the green belt was projected southwards to include undeveloped land in the wedge itself. This proposal known as “Proposal No. 3” formed part of a schedule of proposed changes to the green belt boundary published together with the draft local plan. The comment against the change which was described as change from “Part Public Open Space, Part White land, Part Residential to Green Belt” was explained in the following manner: “To safeguard the open valley and provide an area for informal recreation.” This contrasted with the description in the draft local green belt plan proposed by the county council in “Proposal No. 24” which I have already recited. The reasons for the proposal were:

(2) Reasons.

To protect this potentially attractive open area. It is considered that the areas already laid out for urban open space purposes are adequately protected from building development.

Paragraph 2.5 of the approved county structure plan defined the policy for the green belt in the county of Hereford and Worcester:

(a) To prevent further growth of the conurbation into the countryside; (b) to limit the expansion of built-up areas in the Green Belt area in order that neighbouring towns and villages will not merge with one another; and (c) to safeguard the area of open countryside in order to take account of the interests of agriculture and to provide a source of informal recreation and enjoyment for the inhabitants of the area and neighbouring built-up areas. The rural character of the Green Belt will therefore be retained, protected and when the opportunity arises, enhanced.

Worth objected to Proposal No. 3 on the basis that the proposed extension of the green belt to

161 Page 5 include the wedge did not serve to prevent further growth of the conurbation into the countryside or to prevent neighbouring towns and villages merging into one another. Therefore purposes (a) and (b) were not valid reasons for this alteration. Furthermore Worth did not accept that purpose (c) could stand on its own as a reason for a new incursion into other planning purposes by the green belt. A local public inquiry was accordingly held under the provisions of section 13 to the 1971 Act. At the public inquiry Worth through their advisors proposed that so far as the land to the north of their factory area was concerned there should be three different types of development. These included residential development, some public open space and amenities. Having set out in his report the principal objections and the council's proposals the inspector at paragraph 297 under the heading “Green Belt Boundary Proposals” said: *339

300. I have already indicated that objections relating to the proposed Green Belt boundary but which concern specific sites have been covered elsewhere in this report. In this section I consider the Council's Schedule of proposed principal changes to the boundary as set out in Plans 5 to 11 and in Appendix 3 to the Written Statement. Change Three: Stour Valley. Puxton. This proposal will take in part of objection Sites Nos. 5 and 7 and part of Site No. 8. These areas have been recommended for inclusion in the Green Belt. This change is therefore accepted.

The report and recommendations of the local plans working party on the report into objections to the local plan came before the planning and highways committee of the council on September 28, 1988, when paragraph 300 of the report which has just been cited was accepted without change from the inspector's recommendations. Worth now challenges the adoption of this part of the inspector's report and its inclusion in the local plan on the grounds that neither the inspector in approving his recommendations without more nor the council had regard to ministerial policy relating to the treatment of green belt proposals in local plans, as disclosed particularly in Circular 14/84, para. 3(a) . It is true that the inspector's report was considered at a meeting of the planning and highways committee on September 28, 1988—but there is no record of any consideration of exceptional circumstances justifying the alteration of the boundary of the green belt. Indeed Mr. Wilson-Smith does not suggest that such exceptional circumstances existed in any event. It is necessary at this stage to refer to some of the circulars and P.P.G.s. Before doing so, however, notwithstanding the accord reached between Mr. Wilson-Smith and Mr. Ash, I must consider the status of these documents. They are not issued under statutory authority. “Prescribed” considerations involve regulations made by the Secretary of State under section 287 of the 1971 Act and are therefore subject to resolution of each House of Parliament. Ministerial circulars as published or as summarised in P.P.G.s have therefore no formal statutory force and should therefore not be treated as such for any purpose. This includes in my judgment the manner in which they should be construed and/or applied. They constitute announcements of the current ministerial planning policy. The only statutory obligation upon the local planning authority is “to have regard to them.” They are in no way bound by them. This appeal can only be based on the ground that the council did not have regard to a relevant circular or P.P.G. The concept of green belts was first introduced in 1955 consequent upon a statement by the minister in the House of Commons on April 26 of that year: 1. Circular 42/55 dated August 3, 1955, after referring to the statement in the House, stated:

I. (1) … I am directed by the Minister of Housing and Local Government to draw your attention to the importance of checking the unrestricted sprawl of the built-up areas, and of safeguarding the surrounding countryside against further encroachment. (2) He is satisfied that the only really effective way to achieve this object is by the formal

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designation of clearly defined Green Belts around the areas concerned. *340 (3) The Minister accordingly recommends planning authorities to consider establishing a green belt wherever this is desirable in order: (a) to check the further growth of a large built-up area; (b) to prevent neighbouring towns from merging into one another; or (c) to preserve the special character of a town. (4) Wherever practicable, a green belt should be several miles wide, so as to ensure an appreciable rural zone all round the built-up area concerned. (5) Inside a green belt, approval should not be given, except in very special circumstances, for the construction of new buildings or for the use of existing buildings for purposes other than agriculture, sport, cemeteries, institutions standing in extensive grounds, or other uses appropriate to a rural area. … (8) In due course, a detailed survey will be needed to define precisely the inner and outer boundaries of the green belt, as well as the boundaries of towns and villages within it. Thereafter these particulars will have to be incorporated as amendments in the Development Plan.

No. 9 is not relevant. 2. Circular 50/57 dated September 19, 1957:

5. The definition of a long-term boundary for development may involve detailed adjustments (either inwards or outwards) in the boundary of the area already allocated on a Town Map. Where land allocations are to be deleted or additional land allocated for development within the plan period, the adjustments can be included in the same submission as the green belt proposals. 6. There may be some pockets of land, between the town and the green belt, which are not to be developed within the present plan period but which could be developed later without prejudice to the green belt. It would be misleading to allocate such areas now, but to include them in the green belt for the time being might give rise to difficulties and undermine public confidence in the green belt at a later date if it were then decided to allocate the land for development. Such areas may well be left as pockets of “white” land. They are then bound to be especially attractive to developers and it will be desirable to set out in the Written Statement the authority's policy for such areas in order to make it clear that they are not available for development at the present time.

3. Circular 14/84 dated July 4, 1984:

1. The Government continues to attach great importance to green belts, which have a broad and positive role in checking the unrestricted sprawl of built-up areas, safeguarding the surrounding countryside from further encroachment and assisting in urban regeneration. There must continue to be a general presumption against inappropriate development within green belts. The Government reaffirms the objectives of green belt policy and the related development control policies set out in Ministry of Housing and Local Government Circular 42/55. 2. Structure plans have now been approved for most parts of the country and these identify the broad areas of the green belt. Detailed *341 green belt boundaries are now being defined in local plans and in many cases these are based on green belt areas defined in earlier development plans approved prior to the introduction of structure and local plans. This process of local plan preparation is continuing and this Circular includes advice on the definition of detailed green belt boundaries in Local Plans. 3. The essential characteristics of green belts is their permanence and their protection

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must be maintained as far as can be seen ahead. It follows from this that:

(a) Once the general extent of a green belt has been approved as part of the structure plan for an area it should be altered only in exceptional circumstances. If such an alteration is proposed the Secretary of State will wish to be satisfied that the authority has considered opportunities for development within the urban areas contained by and beyond the green belt. Similarly, detailed green belt boundaries defined in adopted local plans or earlier approved development plans should be altered only exceptionally . [Emphasis provided] ….

Paragraph (b) is not relevant. It remains only to refer to the relevant “P.P.G.” There were a series of these published in draft form towards the end of 1987 and formally published in January and February 1988. There were in fact 10 in number; but at this stage I need only refer to one of them: 1. Planning Policy Guidance (2) was headed “Green Belts” and provided so far as relevant as follows:

Purposes of Green Belts

4. Green Belts have five purposes:

—to check the unrestricted sprawl of large built-up areas;

— to safeguard the surrounding countryside from further encroachment;

— to prevent neighbouring towns from merging into one another;

— to preserve the special character of historic towns; and

— to assist in urban regeneration.

5. Green belts also have a positive role in providing access to open countryside for the urban population. Such access may be for active outdoor sports or for passive recreation. Outdoor leisure pursuits are likely to occupy an increasing proportion of the Green Belts if, as currently expected, the land needed for food production decreases. …

Designation of Green Belts

7. The essential characteristic of green belts is their permanence and their protection must be maintained as far as can be seen ahead. 8. Green belts are established through development plans. Their general extent has now been fixed through the approval of structure plans and many detailed boundaries have been set in local plans and in old development plans. 9. Once the general extent of a green belt has been approved it should be altered only in exceptional circumstances. If such an alteration is proposed the Secretary of State will wish to be satisfied that the Authority has considered opportunities for development within urban areas contained by and beyond the green belt. Similarly, detailed green belt *342 boundaries defined in adopted local plans or earlier approved development plans should be altered only exceptionally. Detailed boundaries should not be amended or development allowed merely because the land has become derelict. On the outer

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edge of a green belt, readily recognisable features such as roads, streams or belts of trees should be used to define the boundaries. 10. Where detailed green belt boundaries have not yet been defined, local planning authorities are urged to complete this task. It is necessary to establish boundaries that will endure and they should be carefully drawn so as not to include land which it is unnecessary to keep permanently open. Otherwise there is a risk that encroachment on the green belt will have to be allowed in order to accommodate future development . 11. When local planning authorities prepare new or revised structure and local plans, any proposals affecting green belts should be related to a time scale which is longer than that normally adopted for other aspects of the plan. They should satisfy themselves that green belt boundaries will not need to be altered at the end of the plan period. In some cases this will mean safeguarding land between the urban area and the green belt which may be required to meet longer term development needs . [Emphasis provided].

This appeal therefore depends upon whether or not paragraph 3(a) of Circular 14/84 applies to the decision of the council to adopt the inspector's recommendation that the wedge should be included within the boundaries of the green belt shown on their local plan. It is common ground that neither the inspector nor the planning and highways committee of the council “had regard to this circular.” It is also common ground that they had a statutory obligation to do this under section 11(9) of the 1971 Act. Although the local authority is not bound by the policy circulars, it should observe them and depart from them only if there are clear reasons, which should be stated, for so doing. See Gransden and Co. Ltd. v. Secretary of State for the Environment . There was an “earlier approved development plan” which excluded the wedge from the green belt (Amendment No. 22 to the development plan prepared by the Worcestershire County Council already mentioned). The extension of the southern boundary of the green belt to include the wedge was therefore an alteration to the boundaries defined in an earlier approved development plan. The central issue was whether “exceptionally” related to any alteration or only to alterations to the boundary the effect of which was to diminish the area of the green belt in the immediate area of the variation.

Otton J. considered this question 3 :

Thus when one turns to para. 3 (of Circular 14/84), one sees that the Secretary of State reiterates the essential characteristics of green belts and then states:

Once the general extent of a Green Belt has been approved as part of the Structure Plan for an area, it should be altered only in exceptional circumstances.

This passage is not strictly relevant to this case, but it nonetheless indicates *343 that the general extent is determined and settled in the Structure Plan and once it has been so determined it shall then ( i.e. in the future) be altered only in exceptional circumstances. In short, the Secretary of State contemplates a prospective and not a retrospective approach. Thus, when one reaches the next relevant sentence:

Similarly, detailed Green Belt boundaries defined in adopted Local Plans … should be altered only exceptionally,

the meaning is clear. Once the detailed boundaries have been defined and adopted in a local plan, then ( i.e. after adoption) they should be altered only in exceptional circumstances. I have of course omitted the words “or earlier approved Development Plans.” The re-insertion of those words into that sentence does not in my judgment, alter the construction I have placed upon the sentence as a whole. These words, as I read them, refer to the rare situations where there is no local plan for the area or, if there is a local plan, it expressly adopted the boundaries defined in an earlier approved plan.

With respect to Otton J., I find it difficult to see how the exercise of omitting the words “or earlier

165 Page 9 approved development plans” assists in the construction of the passage as a whole. “Adopted Local Plans” are local plans which have been prepared under sections 11 to 14 of the 1971 Act. These can be altered subsequently under the provisions of section 15 of that Act. “Earlier approved Development Plans” clearly relates to development plans prepared and approved under section 55 of the 1947 Act including amendments under section 56 of that Act. The two types of plans to which para. 3(a) refers are quite different classes of document and are prepared under different statutes. Of course the plan with which this appeal is concerned falls within the latter rather than the former category. In construing para. 3(a) one must look at it as a whole. The first sentence of para. 2 of Circular 14/84 recorded that structure plans had by then been approved for most parts of the country and that these identified the broad areas of green belt. The remaining part of para. 2 addressed itself to the question of local plans in which detailed boundaries of green belts had already been shown, or were about to be shown, stating that in many cases these were based on green belt areas defined in earlier relevant plans approved prior to the introduction of structure and local plans. Here again the relevant plans referred to would include development plans. Returning to para. 3(a) the first point that the paragraph makes is that once the “general extent” of a green belt had been approved this should only be “altered” in exceptional circumstances. It is to be noticed that the paragraph does not say that it should only be “reduced” in exceptional circumstances. The word “altered” is quite unqualified. What then is the significance of the word “similarly” with which the last sentence opens? It must refer to two categories of cases, namely where local plans had already been adopted or where earlier approved development plans were in place. I see no mandate for treating the two alternative positions differently. The boundaries of existing green belts in structure plans should not be altered either way except in exceptional circumstances nor should adopted local plans be treated any differently. Mr. Wilson-Smith argued that the word “alteration” as used in para. 3 of the circular means “alteration which results in diminishing the area of the green belt.” He justified the implication of these words by *344 pointing to the policy of Circular 14/84 , which refers only to the necessity of “preserving” the green belt from encroachment, usually by buildings residential and industrial, both within the green belt or by erosion along the boundaries—he referred by way of example to “safeguarding the surrounding countryside from further encroachment …”(para. 1):

There must continue to be a general presumption against inappropriate developments within green belts and

The essential characteristics of green belts is their permanence and their protection must be maintained.

These statements merely repeat and reinforce Circular 42/55 , to which I have already referred. The context in which the statement in the House was made and the circular issued was a purely negative one, i.e. to prevent urban sprawl. It is not surprising therefore that the emphasis is on the restriction of alterations, the effect of which would be to erode or diminish the extent of green belts. Mr. Wilson-Smith submitted that there was no need to give protection against extensions of the green belt. I must return to consider this proposition in a little more detail later. It was not the basis upon which Otton J. formed his judgment 4 :

In short I reject the construction advanced by Mr. Harper. Para. 3(a), read in the context of Circular 14/84 as a whole, does not mean that once a boundary had been defined and settled under an earlier development plan it could only be changed in a later local plan in exceptional circumstances. In reaching this decision, I take into account part of paragraph 9.6 from the Hereford and Worcester County Structure Plan, Written statement, which states:

The Secretary of State is committed to the preservation of the green belt and considers that for green belts to maintain their credibility, once their general extent has been approved as part of the structure plan for the area, they should be altered only in exceptional circumstances.

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I interpolate that the words “once …” through to “exceptional circumstances” reiterate word for word the first sentence of paragraph 3(a) of Circular 14/84. The next sentence appears to confirm my construction:

He is aware that precise green boundaries remain to be determined in this area and that this exercise, which should be done through the local plan process, may involve some adjustment at the margins of the green belt as shown in the structure plan.

In my judgment the alteration of the applicants' boundary as a result of the representation by the county council amounted to no more than an adjustment at the margin of the green belt.

I hope that it does not do an injustice if I say that Mr. Wilson-Smith did not embrace the suggestion that the inclusion of the wedge within the green belt could be described as an adjustment at the margin with any degree of enthusiasm. The main plank of his argument was that alterations to the *345 boundary of the green belt which had the effect of extending the green belt did not require justification by exceptional circumstances. To support this argument the respondents had served a notice under R.S.C., Ord. 59, r. 6(1)(b) to the following effect:

1. That exceptional circumstances were not required under Circular 14/84 or Planning Policy Guidance (P.P.G.) (2) issued by the Department of the Environment where the alteration to the green belt was by way of extension rather than relaxation. 2. That the process of producing a new Local Plan was itself an exceptional circumstance.

Para. 2 of the notice was not relied upon by Mr. Wilson-Smith, rightly in my judgment. It could not be substantiated on any basis. Mr. Ash submitted that para. 3(a) of Circular 14/84 was in plain terms and that proper planning required consideration of the interests of all parties involved, not the least those interested in development. The effect of the green belt was to sterilise the area for development, other than the limited number of specified purposes and would inhibit proper and orderly development. Therefore once the boundaries of the green belt in a particular area had been defined developers and others interested were entitled to protection against change to the limited degree that the boundaries would only be altered in exceptional circumstances. Besides what must be assumed to be the deliberate use of the word “alter” in para. 3(a) as I have already observed in my judgment, Mr. Ash has support for his submissions to be drawn from a consideration of planning concepts as a whole. The circulars and P.P.G.s having no statutory authority can only be viewed as indicatory of current planning policy. Although the P.P.G.s were issued over a matter of months, the circulars were published over a period of years. One can detect over the passage of time shifts in emphasis disclosed in the latter as between “development” on the one hand and “conservation” on the other. In the circumstances, I think that Mr. Wilson-Smith was justified in submitting that these documents should not be treated as statutes in the process of construing what they mean. In my judgment it is legitimate to look to the purpose of planning policy as a whole and take into account the particular contemporaneous context in which a particular document was published. I consider that the key may well lie in the underlying concept of P.P.G. (1), namely that where possible planning policies should encourage development:

The presumption in favour of development

15. The planning system fails in its function whenever it prevents, inhibits or delays development which can reasonably be permitted. There is always a presumption in favour of allowing applications for development, having regard to all material considerations, unless that development would cause demonstrable harm to interests of acknowledged importance. Except in the case of inappropriate development in the green belt the developer is not required to prove the case for the development he

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proposes to carry out; if the planning authority consider it necessary to refuse permission, the onus is on them to demonstrate clearly why the development cannot be permitted.

The zoning of any particular area as a green belt sterilises that area except for the limited category of purposes listed in para. 5 of Circular 42/55 *346 . It therefore provides a kind of planning blight and must be an exception to P.P.G. (1) para. 15, the area of which should not be extended unless it is necessary for the purposes of the green belt as defined in P.P.G. (2). As it directly prejudices landowners in the otherwise proper development of their land an extension to the green belt should not be brought into effect unless it can be justified directly by those purposes for which the green belt is designed. There must therefore be an inhibition in extending a green belt so as to avoid sterilising unnecessarily neighbouring land (see the provisions of paras. 5 and 6 of Circular 50/57 set out earlier in this judgment) just as much as reductions in the boundaries of the green belt, which would prejudice the purposes of that green belt, must also only be made in exceptional circumstances. On this basis I think that the general concept of the advice in the circulars is that once a green belt has been established and approved as a result of all the normal statutory processes it must require exceptional circumstances rather than general planning concepts to justify an alteration. Whichever way the boundary is altered there must be serious prejudice one way or the other to the parties involved. This accords with a plain reading of the words “altered” and “alteration” in para. 3(a) of Circular 14/84 . Furthermore the general tenor of Circular 14/84 is that once a green belt has been approved—either in an adopted local plan, or if a local plan has not been adopted under the 1971 legislation then the next previously approved and adopted plan—alteration to boundaries of a green belt should only be made in exceptional circumstances. There are two obvious qualifications to this principle. First, if as a result of the supervening structure plan green belt boundaries shown in an earlier development plan become meaningless or anomalous; secondly, if the structure plan for the area concerned has not been approved, then none of the provisions of para. 3(a) apply. The matter is considered in para. 3(b) to which it is, at this stage, interesting to refer:

Where detailed green belt boundaries have not yet been defined in earlier approved development plans or in adopted local plans—for example, where approved structure plans have extended the area of the green belt to include areas previously referred to as “interim” green belt—it is necessary to establish boundaries that will endure. It is especially important that these boundaries of green belts should be carefully drawn so as not to include land which it is unnecessary to keep permanently open for the purpose of the green belt. Otherwise there is a risk that encroachment on the green belt may have to be allowed in order to accommodate future development. If green belt boundaries are drawn excessively tightly around existing built-up areas it may not be possible to maintain the degree of permanence that green belts should have. This would devalue the concept of the green belt and also reduce the value of local plans in making proper provision for necessary development in the future.

Although for the reasons already stated the emphasis is on erosion of the green belt, this sub-paragraph indicates that the importance of unnecessary extension has not been overlooked. Although there might have been a case to be made on the grounds that the reasons given in proposed change No. 3 to the draft local plan for extending the green belt were not justifiable in any event, this was not pursued by Mr. Ash and it is not necessary for me to consider this position. I *347 am satisfied that neither the inspector nor the planning authority “had regard” to para. 3(a) of Circular 14/84 . For the purpose of the appeal it was conceded by Mr. Wilson-Smith that there were no “exceptional circumstances” which would justify the inclusion of the wedge in the green belt. I would allow the appeal and quash this part of the local plan. Taylor L.J. I agree that this appeal should be allowed for the reasons given by Purchas L.J. There was no dispute that the local planning authority had a duty to have regard to circulars and P.P.G.s issued by the Secretary of State. The central issue was as to the meaning and effect of para. 3(a) of

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Circular 14/84 which provides as follows:

3. The essential characteristic of green belts is their permanence and their protection must be maintained as far as can be seen ahead. It follows from this that:

Without seeking to construe the circular as strictly as a statute, which would be inappropriate, I agree with Purchas L.J. as to its purpose and effect. The introductory words refer to the permanence as well as to the protection of the green belt as being essential. The word “altered” is used in para. 3(a) rather than words such as “reduced,” “encroached upon” or “breached.” It is suggested that the second sentence is consistent only with alteration by reduction, the implication being that if there are opportunities for development in the urban areas the green belt should not be invaded for such development. However, it could equally apply to exclude extension of the green belt if such extension would diminish unacceptably opportunities for development having regard to the opportunities available in the urban areas. This latter consideration is clearly, contemplated in para. 3(b) which states, inter alia :

… It is especially important that these boundaries of green belts should be carefully drawn so as not to include land which it is unnecessary to keep permanently open for the purpose of the green belt. Otherwise there is a risk that encroachment on the green belt may have to be allowed in order to accommodate future development. If green belt boundaries are drawn excessively tightly around existing built-up areas it may not be possible to maintain the degree of permanence that green belts should have.

In my view, the requirement of exceptional circumstances before altering the green belt was applicable to increasing as well as reducing it. The prejudice to land owners and developers and the uncertainties which would be created if the green belt, once approved, could be extended other than exceptionally have been fully explained by Purchas L.J. It is true that the circular and P.P.G. (2), which is to similar effect, do not bind the local planning authority, but it must have regard to them. It did not do so. Moreover, *348 it is conceded that there were here no exceptional circumstances. Accordingly, in my view, the decision to include the “wedge” in the green belt was flawed. Beldam L.J. In this case the appellant in an application to the High Court under section 244 of the Town and Country Planning Act 1971 , challenges the validity of a proposal made by the respondent district council, in formulating the Wyre Forest Urban Areas Local Plan on the ground that it did not have regard to considerations which the Secretary of State in the particular case directed it to take into account. The particular considerations are those contained in circulars and planning policy guidelines relating to green belt areas. As Purchas L.J. records in his judgment, the court has been asked to decide the case on the single issue of the construction to be given to a particular Circular, 14/84 , issued by the Secretary of State and entitled “Green Belts.” It is said that if the construction contended for by the appellant is correct, its appeal should succeed but if the respondent's construction is right then the appeal must fail. I do not myself believe that this is the correct or a realistic basis upon which to decide whether in any particular case a local planning authority has erred in formulating its proposals in a local plan. Nevertheless under the constraint imposed by the manner in which the case was presented and in the light of the clear concession made on the respondent's behalf by Mr. Wilson-Smith, Q.C. that the respondent's reasons for its decision would be inadequate if it was required to have regard to the Secretary of State's policy for settling the boundaries of a green belt area when enlarging as well as when reducing the area contained within its boundaries, I agree that the appeal should be allowed. Ministerial guidance clearly does not have the force of a statute or regulations and is not intended

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to be subjected to a process of legalistic interpretation. Equally ministerial policy is something which a local planning authority is required under the Act to take into account in reaching the decision entrusted to it by Parliament. According to para. 5 of P.P.G. (2) issued by the Department of the Environment in January 1988, one justification for including land within a green belt is so that it may play a positive role in providing access to open countryside for the urban population. Such access may be for active outdoor sports or for passive recreation. The reason given in Appendix 3 of the Wyre Forest Urban Areas Local Plan written statement for the inclusion in the green belt of the wedge of land, part of which belonged to the appellant, was to safeguard the open valley and to provide an area for informal recreation, a purpose which as it seems to me was well within the justification to which I have referred. The paragraphs in Circular 14/84 dated July 4, 1984, and issued by the Department of the Environment upon which so much emphasis has been placed are in part reproduced under the heading “Designation of Green Belts” paras. 7 to 11 of P.P.G. (2). If it were correct to view the ministerial guidance as being subject to strict legal rules of construction, I would for my part have said that in para. 3(a) the Minister clearly had in mind alterations which consisted of allowing development in designated green belt areas. The fact that if such an alteration was proposed the Secretary of State would have to be satisfied that it could not be accommodated within urban areas contained by and beyond the green belt, seems to me to support this. The word “similarly” later in para. 3(a) is in my view used to indicate that the *349 same criterion should be applied to green belt boundaries defined in adopted local plans or earlier approved development plans as to those approved as part of a structure plan for an area. And although this paragraph in isolation might suggest that ministerial guidance is limited to development which reduces the area of the green belt, there is clearly other policy guidance for green belt boundaries in both the circular and in P.P.G. (2).Circular 14/84 states:

It is especially important that these boundaries of green belts should be carefully drawn so as not to include land which it is unnecessary to keep permanently open for the purpose of the green belt. Otherwise there is a risk that encroachment on the green belt may have to be allowed in order to accommodate future development. If green belt boundaries are drawn excessively tightly round existing built-up areas, it may not be possible to maintain the degree of permanence that green belts should have. This would devalue the concept of the green belt and also reduce the value of local plans in making proper provision for necessary development in the future.

This guidance is reproduced in P.P.G. (2) in paragraph 10:

It is necessary to establish boundaries that will endure and they should be carefully drawn so as not to include land which it is unnecessary to keep permanently open. Otherwise there is a risk that encroachment on the green belt will have to be allowed in order to accommodate future development.

Such guidance cannot, I think, be confined to cases where detailed green belt boundaries have not yet been defined. In the context of ministerial policy as a whole it is, I think, intended to apply whether the boundaries of the green belt are being changed to reduce or to enlarge the area. This seems to me clear from the policy more fully set out in Circular 14/84 . Thus, a local planning authority considering whether or not to alter the boundaries of a green belt by the inclusion of additional land not previously contained within the boundary should at least take into account as part of ministerial policy whether that boundary is in the longer term defensible against pressure for development and whether to draw the proposed boundary may include land which it is unnecessary to keep permanently open for the purpose of the green belt. The reasons given by the respondent and the manner in which the appeal has been resisted on its behalf, seem to me to indicate that in adopting the recommendation of the inspector who conducted the local inquiry it did not have regard to this important aspect of ministerial policy. I therefore agree that the appeal should be allowed. Representation

Solicitors— Marriott Harrison Bloom & Norris ; the Solicitor to the Wyre Forest District Council.

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Appeal allowed with costs of appeal and below. *350

1. (1991) 61 P. & C.R. 57 .

2. (1991) 61 P. & C.R. 57 .

3. (1991) 61 P. & C.R. 57 at pp. 62–63.

4. (1991) 61 P. & C.R. 57 at p. 63.

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