NPPF and objectively assessed need (OAN)

The Court of Appeal (in Solihull MBC v Gallagher and Lioncourt, December 2014) has reinforced the 2 stage approach required to satisfy paragraph 47 of NPPF with the OAN being an essential first and separate step. Failure to proceed in that way amounts to an error of law.

Developers whose sites were put into the green belt by the Solihull Local Plan challenged the plan on grounds which included the lack of an NPPF compliant OAN. The Council had used figures derived from the RSS. The claim succeeded at first instance and parts of the plan were sent back for re-examination. The Council appealed to the Court of Appeal – but failed.

The Court found that the OAN exercise in paragraph 47 must be carried out as a separate one ahead of how needs should be met. Even though this is a policy requirement, the failure to proceed in that way was found to be an error of law. The Court did not see this way of proceeding as being in any way “mechanistic” (as argued for by the Council), but an essential and important part of the NPPF approach which requires the “boost(ing)” of housing supply and which effects a “radical change” compared with previous policy. Unless the OAN exercise is done “clearly and cleanly” in this way, the second exercise, where other policies in NPPF which might be offended if OAN were fully met are considered, is undermined.

There was also a cross appeal brought by the developers arguing that remission for further examination of parts of the plan had not been an appropriate remedy. The Court agreed. The Council’s failure to proceed on a proper reading of paragraph 47 was too fundamental. The offending parts of the plan were therefore remitted for the Council’s further consideration.

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