Tewkesbury Borough Council in Gloucestershire has failed in a bid to have past oversupply of housing taken into consideration when calculating a shortfall in five-year housing supply.
The case centres on a 50-dwelling development that was blocked by the council but allowed by a planning inspector, who found that the council was not able to demonstrate an adequate supply of housing.
The requirement to demonstrate a five-year housing land supply is a central feature of national planning policy in relation to residential development.
In this case, the council agreed that it could not demonstrate an adequate supply. The issue in question was the extent of the shortfall.
The council claimed that, when previous years of oversupply of housing were taken into account, they were able to demonstrate a five-year housing land supply of 4.37 years. The planning inspector found that without it they were able to demonstrate just 2.4 years.
At a hearing in July, lawyers for the council argued that taking into account previous oversupply did not violate the National Planning Policy Framework.
High Court Judge Mr Justice Dove, who heard the case, ruled this week that, while doing that did not violate the NPPF, there was no actual requirement for previous oversupply to be taken into consideration.
“I am unable to accept the primary submission made by the claimant that the provisions of the framework require any oversupply prior to the period for which a five-year housing land supply is being calculated to be taken into account,” he said in his ruling.
“Firstly, the text of the framework does not include any such suggestion,” he said. “Whilst it is clear that the intention of the framework is that planning authorities should meet the housing requirements set out in adopted strategic policies, that does not necessarily mean that any oversupply in earlier years, as in the present case, will automatically be counted within the five-year supply calculation.”
The judge added that the text of the NPPF was “silent” on the matter. “It is far from uncommon for there to be gaps in the coverage of relevant planning policies: they will seldom be able to be designed to cover every conceivable situation which may arise for consideration.”
He said that in such circumstances the decision-maker, in this case a planning inspector, should use their planning judgement.
“I have concluded that the claimant cannot succeed,” he said, dismissing the council’s case.
Tewkesbury Borough Council v Secretary of State for Housing, Communities and Local Government and JJ Gallagher Ltd and Richard Cook
Queen’s Bench Division (Dove J) 18 October 2021
