Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government – Town and country planning – Planning permission – Five-year housing land supply – Claimant applying for planning permission for residential development – Local authority refusing permission – Inspector appointed by secretary of state dismissing appeal – Claimant applying to quash decision – Whether inspector erring by failing to make final finding as to five-year housing land supply – Application granted
The claimant applied for planning permission to the second defendant local authority for the erection of up to 140 dwellings, demolition of outbuildings, public open space landscaping and sustainable drainage system, together with a vehicular access at a site at Newton Road, North Petherton, Somerset, in the second defendant’s administrative area. That application was refused on the ground that, amongst other things, the appeal site was outside the defined settlement boundary for the settlement and therefore in the countryside, an area to which restrictive policies applied in the development plan.
The claimant appealed under section 78 of the Town and Country Planning Act 1990 and the appeal was determined by means of the public inquiry procedure. An inspector appointed by the first defendant secretary of state dismissed the appeal. In his report, the inspector said that, while it would be clearly desirable for him to reach a firm conclusion if reasonably possible, in this case it was not a realistic option.
The claimant applied under section 288 of the 1990 Act for an order quashing that decision on the ground, among other things, that the inspector misinterpreted and misapplied national planning policy in failing to make any final finding as to the second defendant’s five-year housing land supply position.
Held: The application was granted.
(1) In the context of section 78 of the 1990 Act it was incumbent upon the inspector to provide legally adequate reasons for his or her decision. In examining the reasons given by the inspector, it was important to read the document and assess it as an exercise in practical decision-taking; it had to be read in good faith and not subject to overly forensic scrutiny. The starting point was the provisions of the national planning policy framework (NPPF) pertaining to the requirement for a local authority to have a five-year housing land supply in para 47 of the NPPF, and the approach taken in the policies of the NPPF when such a supply did not exist. The relevance of policies for the supply of housing not being considered up to date was reflected in para 14 of the NPPF which provided for the use of a tilted planning balance favouring the grant of permission in cases where relevant polices were out of date.
(2) It was not the role of the court to add to or refine the policies of the NPPF, but only to interpret them when called upon to do so, to supervise their application within the constraints of lawfulness and ensure that unlawfully taken decisions did not survive challenge. The policies in para 14 and 49 of the NPPF did not specify the weight to be given to the benefit, in a particular proposal, of reducing or overcoming a shortfall against the requirement for a five-year supply of housing land. That was for the decision-maker’s planning judgment and the court would not interfere except on public law grounds. But the weight given to the benefits of new housing development in an area where a shortfall in housing land supply had arisen was likely to depend on factors such as the broad magnitude of the shortfall, how long it was likely to persist, what the local planning authority was doing to reduce it and how much of it the development would meet. There was no hard and fast rule as to the degree of precision required in reaching a conclusion on the five-year housing land supply. In the event of a shortfall in the housing land supply, by and large it would be necessary for the decision maker to engage at least in broad terms what the extent of that shortfall was.
(3) The fact that there was a large difference between the competing analyses of the claimant and the second defendant did not prevent, or make inappropriate, the inspector using the evidence at his disposal in order to reach a conclusion on the key issue of five-year housing supply. The fact that the local plan inspector was undertaking an examination and was also looking at the five-year housing land supply position of the second defendant was not a reason for the inspector taking the decision on this appeal to fail to reach a conclusion on the five-year housing land supply position. Any conclusion which the inspector reached would necessarily be one taken at a particular point in time on the basis of the evidence then available. The inspector clearly overlooked the potential materiality of any shortfall to other elements of the planning balance, as opposed to the formula for that balance which had to be used. The inspector had fallen into legal error by failing to reach a conclusion in relation to the five-year housing land supply position and undertake some measurement of the five-year housing land supply so as to understand the extent of the influence of any shortfall in relation to the weight to be attached to the benefit of making housing provision and the weight to be attached to policies with which the housing proposal conflicted. He reached no conclusion at all as to the five-year housing land supply position, and whether there was a shortfall. That amounted to the failure to take account of a material consideration arising from the proper interpretation of housing policy in the NPPF. This was not one of the exceptional cases where such a conclusion either could not be reached or was not required in order to provide a comprehensive answer to the question of whether or not development should be consented. The decision would be quashed and the matter remitted for redetermination: Shropshire Council v Secretary of State of Communities and Local Government and Others [2016] EWHC 2733 (Admin); [2016] PLSCS 292 and Hallam Land Management v Secretary of State for Communities and Local Government [2018] EWCA (Civ) 1808 followed.
Jonathan Easton (instructed by Addleshaw Goddard LLP) appeared for the claimant; Jack Smyth (instructed by the Government Legal Department) appeared for the first defendant.
Eileen O’Grady, barrister
