The Court of Appeal has rejected a parish council’s claim that Babergh District Council, when assessing the five-year supply of housing land, misdirected itself on the relevant policies in the National Planning Policy Framework (NPPF).
In East Bergholt Parish Council, R (on the application of) v Aggett & Ors  EWCA Civ 2200 Lord Justice Lindblom said this was not the first case of its kind but added that no new issue of law was involved.
The appellant, East Bergholt Parish Council, was appealing against an order dated 7 December 2018 of Sir Ross Cranston, sitting as a judge of the High Court, by which he dismissed its claim for judicial review of three grants of planning permission by the respondent, Babergh District Council, for housing development on sites in East Bergholt.
In total, the three developments would provide up to 229 new dwellings.
The district council's Planning Committee resolved to approve all three proposals on 2 August 2017. In each case the proposal did not accord with the development plan, which included the Babergh Core Strategy, adopted by the district council in February 2014, and the East Bergholt Neighbourhood Plan, made in September 2016.
However, the district council concluded that the five-year housing land supply required under government policy in paragraph 47 of the NPPF did not exist, so that, under the policy in paragraph 49, the policy for the "presumption in favour of sustainable development" in paragraph 14 was engaged and a decision to grant planning permission was justified.
Lord Justice Lindblom said two main issues arose in the appeal:
- Did the district council err in law in its assessment of housing land supply, misinterpreting and misapplying NPPF policy, and including only sites on which it was certain, or absolutely certain, that housing would be delivered within five years – an approach said to be contrary to the decision of the Court of Appeal in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government  EWCA Civ 1643;  PTSR 746 (ground 1 and ground 2 in part, and the district council's respondent's notice)?
- Did it improperly take into account the possible financial consequences for itself of fighting appeals against the refusal of planning permission (ground 2 in part).
Dismissing the appeal, Lord Justice Lindblom said: “I do not think the assessment of the five-year housing land supply underlying the officer's advice to the Planning Committee at its meeting on 2 August 2017 was at odds with the approach endorsed by this court in St Modwen Developments Ltd.
“It does not, in my view, betray any misdirection on the meaning and effect of the policy in paragraph 47 of the NPPF, or the relevant guidance in the PPG, or a misapplication of that policy and guidance. None of the planning judgments embodied in it were unlawful.”
The Court of Appeal judge added: “The assessment of the five-year housing land supply in the annual monitoring report demonstrates an approach considerably less ambitious than a quest for ‘certainty’ of delivery within that time.
“The inclusion of allocated sites still without a planning permission, or with a resolution to grant and a section 106 obligation outstanding, goes against the argument that the district council had set itself so rigorous a test – nothing less than a total absence of doubt. Neither of those categories of site could realistically be said to represent a ‘certainty’ of any particular number of dwellings being developed on them within five years.”
Lord Justice Lindblom continued: “The same might also be said of the sites included in the supply for which outline or full planning permission had already been granted – with a 10% adjustment for ‘lapse’ – in accordance with the approach to sites with planning permission indicated in footnote 11. But in any event it is clear that a substantial portion of the housing land supply assessed in the annual monitoring report – 230 dwellings – comprised sites for which planning permission had not yet been granted, to which a degree of uncertainty in both the amount and timing of development must attach. How much uncertainty may be moot.”
Ultimately, this was a matter for the district council's planning judgment, Lord Justice Lindblom said. “It may or may not be fair to describe its exercise of planning judgment as more circumspect than other local planning authorities' in similar circumstances would have been – or indeed the Secretary of State or his inspector on appeal. And it may or may not be right to suggest, as the parish council does, that there was a strong case for including developments on smaller sites…..in the five-year supply.”
Such arguments, however, tended dangerously close to the merits of including individual sites in the five-year supply, which it was not the court's role to consider, Lord Justice Lindblom said. “They do not, in my view, demonstrate a failure by the district council to understand government policy in paragraph 47 of the NPPF or guidance in the PPG, or a misapplication of that policy and guidance, or an exercise of planning judgment outside the generous scope that public law permits.”
On the second issue, Lord Justice Lindblom said (at para 82): “It need hardly be said that local planning authorities are not free to misread or misapply government policy because they fear the financial consequences for themselves if later faced with an appeal against a decision to refuse planning permission, or indeed, as in this case, proceedings for judicial review challenging a decision to grant.
“They must adhere, always, to a correct interpretation of relevant policy, apply such policy lawfully when assessing the proposals before them solely on the planning merits, and not allow the potential consequences of the decision for their own resources to influence their exercise of planning judgment.”
He added: “If authorities abide by that basic principle, they may still not avoid the expense of having to defend their decisions on appeal or resist claims for judicial review. That is beyond their control. But they will, at least, be acting in accordance with the law. And in this case, in my view, the district council did that.”
Lord Justice Underhill, who along with Lord Justice Irwin agreed with Lord Justice Lindblom, said the following passage from a Senior Policy Strategy Planner at Babergh on the effect of NPPF policy had caused him some unease.
"… [A] 5YHLS assessment tends to come under close scrutiny in the development management process for the determination of planning applications. Because decisions to refuse planning permission can be appealed … and appeals are resource-intensive both financially and with regard to officer time, and there is a risk of a costs award if [the district council] is found to have acted unreasonably, [the district council], like many other planning authorities, seeks to ensure that its 5YHLS assessment is robust and able to withstand scrutiny. This helps to ensure sound decision-making, deter unjustified appeals, and minimise the risks of [the district council] losing appeals."
Lord Justice Underhill said: “It is true that in the real world councillors and officers are bound to be aware that a refusal of planning permission for a big development is likely to be appealed, and that, win or lose, the process will be expensive in terms both of officer resources and of legal costs incurred – let alone the further, though no doubt typically remote, risk of liability for the developer's costs if the appeal is successful and the council is held to have acted unreasonably. No doubt the risk of those costs will encourage them to think carefully about any refusal decision, and that is fair enough – though of course in principle they should be doing so anyway.
“But that is not the same as allowing the risk of the costs associated with defending an adverse decision on appeal to influence them in the exercise of their planning judgement. That is not legitimate.... It is important that that distinction is not blurred; and there is a risk of that occurring if officers in their advice make express reference to the likely costs consequent on a refusal.”
Lord Justice Underhill added: “Councillors' job is to exercise their planning judgement, and if that leads to an expensive appeal that cannot be helped. The same of course goes for planning decisions which cannot be appealed as such but which an adversely affected party may choose to challenge by way of judicial review. I therefore particularly endorse what Lindblom LJ says at para. 82.”