[2025] UKUT 00007 (LC)

The preliminary issue falls to be considered in the context of national and local planning policy and guidance in 2018.

The National Planning Policy Framework (‘NPPF’) had little specifically to say about student housing either in its original form in force for the two earlier valuation dates or as revised with effect from 24 July 2018. We were reminded of the general presumption in favour of sustainable development and of its importance for both the plan making and development control aspects of the work of a local planning authority. The policy framework directed that the needs of groups with specific housing requirements were to be addressed in the context of the wider objective of significantly boosting the supply of homes (paragraph 59), and that the size, type and tenure of housing needed for different groups, including students, should be assessed and reflected in planning policies (paragraph 61).

Strategic policy-making authorities (which include the City Council) were required to establish a housing requirement figure for their whole area, showing the extent to which their housing need could be met over the plan period (paragraph 65).

More specific guidance on the assessment of housing and economic development needs was provided in Planning Practice Guidance (PPG) which supported the NPPF. As far as housing is concerned the document (and a revision of 13 September 2018) usefully explained that the objective of identifying need in this context is to identify the future quantity of housing needed, including a breakdown by type, tenure and size. “Need” was to be assessed over the plan period and should consider “future scenarios that could be reasonably expected to occur”. Plan makers were advised to examine current and future trends in demographic factors, types of households, housing stock and tenure. Authorities were encouraged to plan for sufficient student accommodation, and in that context attention was drawn to housing provided by private landlords. The PPG acknowledged a relationship between the housing needs of students and those of the wider population and suggested at ID2a-021 that, by releasing properties in the private rented sector, the provision of PBSA might contribute to satisfying general housing targets:

“Encouraging more dedicated student accommodation may provide low cost housing that takes pressure off the private rented sector and increases the overall housing stock.”

Although this observation was addressed to plan makers, Mr Taylor (Curzon Park’s expert witness) regarded it as material to the assessment of housing need generally. We agree and note that the same relationship between PBSA and the general housing market is a theme in the supporting text to Policy TP33 and in the City Council’s November 2019 report on supply and demand in student accommodation, which we were encouraged by the Secretary of State to adopt as a correct statement of how Policy TP33 should be applied in decision making.

The PPG also recognised that housing or economic needs are rarely constrained by local authority administrative boundaries, and that their assessment might therefore require coordination between several planning authorities or focus on smaller areas within the boundaries of a single authority. In answer to the question ‘What areas should be assessed?’, it advised that:

“needs should be addressed to the relevant functional area, ie housing market area… Establishing the assessment area may identify smaller sub-markets with specific features, and it may be appropriate to investigate these specifically in order to create a detailed picture of local need.”

The local plan, the Birmingham Development Plan was relatively new in 2018, having been adopted by the City Council in January 2017, and runs until 2031. It includes a specific policy concerning PBSA. Policy TP33 is in these terms:

It will be seen that the policy distinguishes between accommodation to be provided on campus, which is to be supported in principle, and accommodation off campus, which will be considered favourably where there is a demonstrated need for the development and subject to the satisfaction of the other criteria identified in the policy. There is an issue in the BCU appeal about the meaning of “on campus” in this context, as the land which it owned at Eastside is within eight minutes’ walk of its main Parkside building. That is an issue for another day.

Text supporting Policy TP33 draws attention to the size of the City’s higher and further education sectors and places importance on the growth of the universities and their role in stimulating the business sector. The City Council expressed a wish “to ensure that there is a sufficient supply of good quality accommodation which meets the needs of all members of the student community, which is provided in a suitable and sustainable location, is well designed and provides a high quality living experience in attractive buildings which enhance the local area.” In view of that statement, and the language of the policy as a whole, we do not accept Mr Williams KC’s description of TP33 as “restrictive” so far as off-campus PBSA is concerned; the policy seems to us to be more affirming or receptive than that. Provided the relevant conditions are met, including a demonstrable need, proposals for off campus provision will be considered favourably.

It is convenient at this point to deal shortly with Mr Hadland’s evidence that the first and second bullet points of the policy are connected. The explanation of that connection in his original report seemed to be that the policy required that a need be demonstrated in relation to a particular university, which may read more into the policy than is justified. In his later report Mr Hadland distanced himself from this position, confirming in cross-examination that nothing in his evidence should be taken as relevant to compliance with the second bullet point (which concerns proximity). In their agreed note on “planning need” the parties confirmed that they did not wish the Tribunal to reach a conclusion on how well located the four sites are at this stage, and we have heard no evidence directed specifically to that issue other than the raw data agreed between the parties in response to the second limb of the preliminary issue. We will therefore approach the assessment of the need for PBSA without considering the second TP33 bullet point.

Student accommodation was of course only one small part of the development plan. Policy PG1 set the wider context by recognising that the City Council’s objectively assessed housing need over the period to 2031 was for 89,000 additional homes, of which only 51,100 were planned for within the plan period. The policy acknowledged that it was not possible to deliver the 37,900 shortfall within the City boundary.

The striking discrepancy between the City’s general need for housing and its capacity to meet it is relevant to our assessment of the need for PBSA. We have previously seen that the relationship between the housing needs of the general population and the needs of students is recognised in the PPG which supports the NPPF. The same relationship is identified in the supporting text to policy TP33 which explains that student households are included in the City's general housing requirement and when student accommodation is provided as self-contained studio apartments or clusters it counts towards meeting the City's housing requirement. The City Council explained that it would therefore continue to monitor the development of PBSA and its contribution to meeting the City's housing requirement. That is a further indication that the City’s general orientation towards PBSA was favourable.

The potential for PBSA to take pressure off the supply of general needs housing and to contribute to meeting the City’s housing requirement was recognised again in the City Council’s annual Strategic Housing Land Availability Assessment (“SHLAA”). Mr Williams KC correctly cautioned that the SHLAA is not, in itself, a decision-making document, but it is nevertheless a formal document required by national planning policy, which explains how a local planning authority intends to meet its housing requirements.

The July 2018 SHLAA, published a year after the development plan was adopted, acknowledged that a significant amount of housing demand originated from the City’s large student population. It included an assessment of the number of students on full-time courses at the City’s universities, which was 66,217, of whom around 44% were not in need of “bespoke accommodation” because, for example, they lived at their own or a parental home. These figures were said to give rise to a “minimum demand for bespoke accommodation of around 36,892 bed spaces”. By “bespoke accommodation” we understand the authors to mean PBSA and not simply accommodation of any type. To meet that demand the City currently had around 21,811 bed spaces in PBSA with a further 5,518 in the pipeline. The SHLAA confirmed that the ‘pipeline’ figure of 5,518 PBSA bedspaces comprised 3,104 bedspaces in 1,464 flats or apartments which were already under construction, plus a further 2,414 bedspaces in 926 units for which permission had been granted.

Mr Hadland accepted that the SHLAA appeared to indicate that in July 2018 BCC considered there was a shortfall of around 15,000 bedspaces before any pipeline was considered.

The document then noted once again that student households are included in the City’s general housing requirement and that student accommodation can be included towards meeting that requirement, based on the amount of accommodation it releases in the housing market. It provided the following assessment of how much accommodation might be released for general use by the provision of additional PBSA:

“4.9

In 2016/17, the most recent year for which information is available, there were 15,280 students residing in “other rented” /HMO accommodation which could be released to the general housing market through the provision of additional purpose built accommodation. The number of bed spaces in the “other rented”/HMO properties varies. In the city centre many students rent single bed apartments while family homes are more frequently occupied by students elsewhere. A dwelling in the general housing market can therefore be freed up through the provision of a purpose built, one person apartment or a cluster flat containing five, six or more bed spaces. The city council's approach is, therefore, to count self-contained units of accommodation not bed spaces despite this significantly undercounting the number of students being accommodated.”

The thrust of policy, both in the PPG and in the SHLAA, appears therefore to have viewed PBSA as a means of encouraging the release of student HMO accommodation to meet general housing needs. No target was set or projection made, nor did TP33 mention this as an objective, but, encouraged by national policy, BCC certainly appears to have regarded the release of housing to the general market as a desirable byproduct of the development of additional PBSA.

The City Council was obviously conscious that a significant portion of the student population did not live at home, on campus, or in “bespoke accommodation” and was accommodated instead in “other rented” accommodation, which included HMOs. It was also alive to the risks of over-concentration of students in particular areas, especially those popular with University of Birmingham students. Long before the publication of the development plan or the 2018 SHLAA the City Council had given itself power to ameliorate those risks. In parts of Selly Oak, Edgbaston and Harborne to the south and west of the University of Birmingham, an Article 4 direction removed permitted development rights in November 2014 preventing any change from a use class C3 dwellinghouse to a class C4 HMO without planning permission.

This direction did not have retrospective effect and we do not see it as part of any wider strategy to make a proportion of student occupied HMOs available to meet general housing need. It was partly for this reason that Mr Hadland did not treat HMO accommodation as a source of future supply. On the other hand, by creating an obstacle to a further proliferation of HMOs the direction was supportive of the City Council’s ambition to encourage a supply of good quality, well designed accommodation in attractive buildings in suitable and sustainable locations.