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5 year housing land supply - the importance of the West Berkshire judgement

In July 2015 Inspector Kevin Ward allowed an appeal by developers HDD against the refusal by West Berkshire Council of a scheme for 90 houses on the edge of a village called Burghfield Common.  The Council challenged the appeal decision in the High Court.  Christopher Young from No 5 Chambers appeared for the developers at the appeal and in the High Court.

In rejecting the Council’s legal challenge to the appeal decision, Mr Justice Supperstone has provided an important judgement1 in relation to:

  • calculating a 5 year housing land supply by using an appellant’s evidence on objectively assessed need (OAN) for housing, and
  • the circumstances where a decision maker can legitimately decline to use a housing requirement figure from an adopted development plan.

At the appeal the Inspector had identified as a main issue whether there existed in West Berkshire a 5 year supply of deliverable housing sites.  In reaching his conclusions that there was not a 5 year supply, he determined that the housing requirement figure in the Core Strategy adopted in 2012 did not represent a robust and up to date assessment of housing needs.  He did so on the basis that significant new evidence in terms of population and household projections, and jobs growth forecasts was now available.  The context for the adopted housing requirement in West Berkshire was also of particular significance in that the Core Strategy housing figures were subject to review provisions.

The Judge supported the Inspector in this approach, and in particular confirmed that Mr Ward was entitled to find that the developer’s evidence as to the OAN for housing can amount to “significant new evidence”, in the words of the PPG at Paragraph ID 03-030, and justify a departure from the figure in the adopted Core Strategy.  This new evidence amounted to material considerations which supported a determination that was not in accordance with the development plan.

The Judge also confirmed that the Inspector was required to identify an annual housing requirement in the District otherwise he would not have been able to identify whether the Council could demonstrate a 5 year housing land supply.  Having concluded that the adopted Core Strategy requirement, subject as it was to a review provision, was now out of date, the Inspector was legitimately entitled to use the developer’s OAN figure.

Pegasus Planning Group provided the housing land supply evidence at the original Inquiry, and the endorsement by the High Court of an appellant’s evidence on OAN for the purposes of calculating the 5 year housing land supply position is very significant.

The judgement confirms the legitimacy of the approach adopted in appeal decisions, including by the Secretary of State, where weight has been given to alternative assessments of housing need.  It is also important in dismissing counter arguments at appeal which suggest it is only for Councils to derive an OAN, and this can only be done on a Housing Market Area basis.

A significant number of development plans have now been adopted with housing requirement figures which do not properly reflect the requirements of the NPPF, on the basis that they will be subject to review.  The West Berkshire judgement provides a salutary reminder to Councils that, although contained in an adopted development plan, these housing requirement figures can be successfully set aside at a Section 78 appeal.

CM March 2016

1 West Berkshire District Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 267 (Admin) (16 February 2016)