Town and country planning – Planning permission – Housing needs – Claimant local authority refusing permission for development of 68 dwellings – Inspector appointed by first defendant secretary of state allowing appeal by second defendant developer and granting permission – Claimants applying to quash decision – Whether inspector adopting incorrect approach to application of paragraphs 47 and 49 of the national planning policy framework (NPPF) – Whether inspector erring in finding that claimants could not demonstrate five year housing land supply – Application granted
The claimant local authority applied under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector appointed by the first defendant secretary of state allowing an appeal by the second defendant developer and granting conditional planning permission for a development of 68 dwellings at Teal Drive, Ellesmere, Shropshire. The claimants had refused planning permission on the ground that the benefits of the development were outweighed by the unacceptable harm to the open countryside, contrary to the development plan.
The basis of the claimants’ challenge was that the inspector had adopted an incorrect approach to the application of paragraphs 47 and 49 of the national planning policy framework (NPPF) when he concluded that, since he had found that the claimants did not have an up-to-date “full, objectively assessed needs” for housing (“FOAN”) or housing requirement, they could not demonstrate a five year housing land supply, under paragraph 49.
The claimants argued that: (i) the inspector had erred in failing to engage with the evidence in respect of the FOAN or the claimant’s “housing requirements”, as referenced in bullet points 1 and 2 of paragraph 47 of the NPPF and failing to explain his reasons for arriving at his conclusions; and (ii) by failing to identify or engage with the FOAN or the claimant’s housing requirements, the inspector had erred since he had no regard to the extent of the shortfall in the claimant’s five year supply of housing. Accordingly, he incorrectly applied the weighted balancing exercise required under paragraph 14 of the NPPF.
Held: The application was granted.
(1) In an appeal concerning housing development, an inspector had to address the issues of housing requirements and housing supply in his decision as they were likely to be material considerations and his judgment on those issues was an essential part of the application of the NPPF. Inspectors generally would be required to make judgments about housing needs and supply. However, that would not involve the kind of detailed analysis which would be appropriate at a development plan inquiry. The inspector at a planning appeal was only making judgments based on the material before him in the particular case, which might well be imperfect. He was not making an authoritative assessment which bound the local planning authority in other cases: Stratford on Avon District Council v Secretary of State for Communities and Local Government & Ors [2013] EWHC 2074 (Admin); [2013] PLSCS 211, South Northamptonshire Council v Secretary of State for Communities and Local Government & Ors [2014] EWHC 573 (Admin), West Berkshire District Council v Secretary of State for Communities and Local Government & Ors [2016] EWHC 267 (Admin), R (Gladman) v Secretary of State for Communities and Local Government & Ors [2016] EWHC 683 (Admin) and Dartford Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 649 (Admin) considered.
(2) In the present case, the inspector had been required to make judgments, based on the evidence, as to the claimants’ current FOAN or housing requirements and its housing supply in order to decide the issues in the appeal. As this was an application for a medium-sized housing development which was not in accordance with the development plan, the inspector had to consider whether other material considerations indicated that planning permission should be granted. The claimant’s level of housing need and supply was a material consideration, as reflected in the NPPF. The inspector had rightly identified the local authority’s housing land supply and housing need as a “main issue”. He could not properly apply paragraph 49 of the NPPF (which had to be read together with paragraph 47) and paragraph 14 without first making those judgments. Paragraph 49 required the inspector to make his own judgment on the equation between housing needs and housing supply based upon the relevant evidence provided by the local planning authority and any other party to the inquiry. In a case where housing needs and supply were in play, the extent of any shortfall in housing supply might well be relevant to the balancing exercise required under paragraph 14: Cheshire East Borough Council v Richborough Estates Partnership LLP [2016] EWCA Civ 168; [2016] PLSCS 90 considered.
(3) It was apparent from paragraph 30 of the Planning Practice Guidance that even if an inspector found that a local plan was outdated, he or she should consider other sources of information. The inspector had to do the best he could with the material before him and had to make the best of an unsatisfactory situation, making a choice between unsatisfactory sources. In this case, although the inspector had considered the reliability of the material, he failed to go on to make judgments on housing needs and supply and so he did not complete the task which he was required to perform.
(4) This was not an exceptional case where the evidence before the inspector was so lacking that it was impossible for him to perform his task. There was a substantial amount of material relating to housing needs and supply in Shropshire, much of it recent in origin, upon which the inspector could have made his judgments. The absence of alternative figures for the FOAN or housing requirements did not absolve the inspector from making his own judgment on the material before him, as best he could, despite its imperfections. If he was not able to identify a specific figure, he could have identified a bracket, or an approximate uplift on the claimant’s figures and the departmental projections. In any event, if the inspector had been genuinely unable to make the required judgments, he ought to have given adequate reasons. This was not a case in which the court ought to exercise its discretion not to quash. The flaws in the decision-making process were potentially critical to the outcome of the appeal.
Anthony Crean QC and Killian Garvey (instructed by Sharpe Pritchard LLP) appeared for the claimants; The defendants did not appear and were not represented; Thea Osmund-Smith (instructed by Humphries Kirk LLP) appeared for the interested parties.
Eileen O’Grady, barrister
