Tewkesbury Borough Council v Secretary of State for Housing, Communities and Local Government – Town and country planning – Planning permission – Housing supply – Inspector appointed by defendant secretary of state granting outline planning permission for 50 new homes on basis that claimant local authority could not demonstrate five-year supply of housing land – Claimant applying to quash decision – Whether past oversupply of housing to be taken into account when calculating shortfall in five-year housing supply – Application dismissed
The interested party applied to the claimant local authority for outline planning permission for the erection of 50 dwellings with associated site works, open space and car parking on a site off Ashmead Drive in Gotherington, Gloucestershire. The application was refused and the interested party appealed. Following a public inquiry, an inspector appointed by the defendant secretary of state allowed the appeal and granted planning permission on the basis that the claimant could not demonstrate a five-year supply of housing in its area.
The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision arguing that, when previous years of oversupply of housing were taken into account, it was able to demonstrate a housing supply of 4.37 years; and para 73 of the national planning policy framework (NPPF) impliedly required account to be taken of that oversupply when calculating the housing land supply position.
The claimant contended that: (i) while the NPPF did not explicitly address the question of past housing oversupply, the correct interpretation of para 73 was that oversupply was to be taken into account when carrying out the assessment of available five-year housing land supply; (ii) alternatively, if the court was satisfied that the NPPF was silent in relation to past oversupply, and the inspector did not regard herself as prohibited from taking it into account, it was Wednesbury unreasonable for her to have taken no account of it in assessing the housing land supply; and (iii) it was irrational for the inspector to take account in reaching her conclusions that houses already delivered could not meet the definition of deliverable housing in the NPPF.
Held: The application was dismissed.
(1) Where there was a shortfall in the five-year housing supply, the overall planning judgment could not properly be made without having at least some appreciation of the extent of the shortfall: that in itself was a planning judgment, to be assessed in the light of the various policies and other relevant considerations. The extent of any such shortfall would bear directly on the weight to be given to the benefits or disbenefits of the proposed development and might well be relevant to the balancing exercise required under para 14 of the NPPF. Inspectors generally would be required to make judgments about housing need and supply. Although that would not involve the kind of detailed analysis which would be appropriate at a development plan inquiry, at least some assessment of the extent of the shortfall should ordinarily be made to enable the decision-maker to understand the weight which could properly be given to that shortfall as a material consideration; without it, the overall weighing process would be undermined.
(2) While it was clear that the intention of the NPPF was that planning authorities should meet the housing requirements set out in adopted strategic policies, that did not necessarily mean that any oversupply in earlier years, as in the present case, would automatically be counted within the five-year supply calculation. The text of the NPPF was silent on, or alternatively did not deal with, what account if any should be taken of oversupply achieved in earlier years when calculating the five-year supply. In the absence of any specific provision within the NPPF, there was no text falling for interpretation, and it was not the task of the court to seek to fill in gaps in the policy of the NPPF. It was far from uncommon for there to be gaps in the coverage of relevant planning policies: they would seldom be able to be designed to cover every conceivable situation which might arise for consideration.
(3) There was no suggestion in the NPPF that any oversupply in earlier years would automatically be counted within the five-year supply calculation, and nor was that a necessary inference from the way in which the NPPF was drafted. In the absence of policy within the NPPF, that would be a matter of planning judgment for the decision-maker, in relation to the question of whether to take oversupply into account, bearing in mind the particular circumstances of the case being considered. When there was no policy covering the situation under consideration then it called for the exercise of planning judgment by the decision-maker to make the necessary assessment to determine the weight to be placed within the planning balance in respect of it.
The points raised by the claimant would undoubtedly form part of the planning judgment as to whether or not earlier oversupply should be taken into account, and, if so, how. It followed that the claimant’s primary submission that the NPPF required the oversupply from earlier years to be taken into account in the five-year housing land supply calculation could not succeed.
(4) The inspector had not misinterpreted the NPPF as preventing her from taking any account of oversupply in addressing the five-year housing supply calculation. The inspector’s decision letter had to be read fairly and as a whole, in the spirit that its purpose was to convey an administrative decision on a planning appeal rather than being some form of legal instrument. Further, the purpose of the decision letter had to be borne in mind, namely, to address the issues raised in the appeal by the parties. Her observation about delivered housing not falling within the definition of deliverable housing simply reflected the reality of what could properly be taken account of as forward supply.
Read in context, and as a whole, the inspector’s conclusions on housing land supply were an expression of the application of planning judgment and did not proceed on the basis that the inspector was reading the NPPF as prohibiting her from taking into account earlier additional supply. It was clear that the inspector was acutely aware of the earlier oversupply as a material consideration for her to address. There was no basis on which to characterise her approach as irrational and she had given clear and adequate reasons for her decision.
Josef Cannon (instructed by One Legal of Tewkesbury) appeared for the claimant; Tim Buley QC (instructed by the Government Legal Department) appeared for the defendant; Killian Garvey (instructed by Shoosmiths LLP) appeared for the interested party.
Eileen O’Grady, barrister