Planning appeal – Previous decisions – Housing supply – Inspector dismissing claimant’s planning appeal in respect of proposed housing development – Appeal turning on whether sufficient five-year supply of deliverable housing sites available to meet requirements of national planning policy framework – Inspector taking into account strategic sites included in draft core strategy when assessing housing supply and concluding supply sufficient – Whether inspector erring in failing to consider previous decisions that strategic sites to be excluded – Claim allowed The claimant developer appealed to the defendant’s planning inspector against the local council’s non-determination of its application for planning permission to build up to 50 houses on land in Purton, Wiltshire. An inquiry was held at which the inspector identified, as one of the main issues, whether there were material considerations outweighing the presumption in the development plan against development in the countryside. In relation to that issue, he considered whether there was a supply of specific deliverable sites in the area sufficient to meet the council’s housing requirements for five years, with an additional buffer of 5% to ensure choice and competition in the market for land, as required by para 47 of the National Planning Policy Framework (NPPF). In that connection, a dispute arose as to whether strategic sites that were included in the council’s draft core strategy and another draft planning document should be included for the purpose of assessing housing supply; the claimant contended that those sites were not “deliverable” within the meaning of the NPPF while the council contended that they were. After the inquiry hearing ended, two decisions of another inspector were promulgated in respect of another site in Calne, Wiltshire; those decisions decided that the strategic sites should be excluded from consideration of the supply of deliverable sites for housing. The inspector who determined the claimant’s appeal did not consider those decisions; he concluded that a five-year housing supply had been shown and, in doing so, took into account the strategic sites. He dismissed the claimant’s appeal accordingly. The claimant brought proceedings under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. They contended that he had erred in finding that a five-year housing supply existed; they submitted that he had failed to take into account the two decisions in respect of the site in Calne as a material consideration or give reasons for not following the approach of the inspector in those cases. Held: The claim was allowed. A previous inspector’s planning decision was capable of being a material consideration, although the importance to be attached to it would depend on the extent to which the issues decided in that decision overlapped with those currently under consideration and whether the planning regime or development plan at the time of the previous decision had been similar to or significantly different from the current planning context. Although an inspector always had to exercise his own judgment, he was required to have regard to the importance of consistency such that, where he disagreed with some critical aspect of a previous decision, he should give his reasons for departing from it: North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR 137; [ 1992] 3 PLR 113 applied. Although the procedural framework for planning inquiries was designed to ensure that all relevant materials were available to the inspector and the parties according to an orderly timetable, there would inevitably be occasions when information that was material to the inspector’s decision would become available for the first time at a date that prevented compliance with the normal framework and rules. The inspector therefore had a discretion to admit materials that had not been provided in accordance with the normal procedural timetable up to the time when he made his decision. The inspector’s decision in the instant case should be quashed since he had failed properly to exercise his discretion and had given inadequate reasons for deciding not to take the Calne decisions into account. There was no evidence that he had carried out any reasoned assessment of the materiality of those decisions or any reasonable balancing exercise to decide whether they should be admitted. Had he done so, he should have decided to admit the decisions, pursuant to his duty to take into account all matters that might cause him to reach a different conclusion and to have regard to material considerations up to the time that he made his decision. The Calne decisions were very recent decisions dealing with the same issues as were central to the claimant’s appeal. They did not simply repeat something that was already before the inspector. Their admission could have been handled in a manner that was procedurally fair to the parties and there was no evidence that it would have been necessary to re-open the inquiry or that significant delay would have been caused by admitting the decisions. It was central to the claimant’s case before the inspector that there was an insufficient supply of deliverable sites for housing. The issue for the inspector was whether the strategic sites were “deliverable”. Although the existence of planning permission was not a necessary prerequisite of a site being deliverable, where sites were included in an emerging policy document that was still subject to public examination, that increased the lack of certainty as to the outcome. The weight to be attached to the inclusion of the sites by the local planning authority could only be determined by reference to the quality of the evidence base, the stage of progress that the draft documents had reached and knowledge of the number and nature of objections that might be outstanding. The decisions in relation to the Calne site were highly material and potentially decisive on the issue of deliverability. Those decisions had been made after the introduction of the NPPF and directly addressed its requirements. They were relevant both geographically, since they addressed the same draft core strategy and other aspects of the development plan as applied to the claimant’s appeal, and in relation to timing, since they addressed those matters at the same stage of their progress as applied to the claimant’s appeal. They had decided that, in the absence of any site-specific evidence in relation to most of the strategic sites, the stage of progress of the development plan and the council’s evidence base did not justify the inclusion of the strategic sites as deliverable. There was a real possibility that a consideration of the Calne decisions would have led the inspector to a different conclusion on the claimant’s appeal. Although he would have been entitled to disagree with those decisions, he would first have been required to have regard to the importance of consistency and to give his reasons for departing from them on a critical aspect in relation to deliverability. David Manley QC (instructed by Ashfords LLP, of Exeter) appeared for the claimant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the defendant. Sally Dobson, barrister
Wainhomes (South West) Holdings Ltd v Secretary of State for Communities and Local Government
Planning appeal – Previous decisions – Housing supply – Inspector dismissing claimant’s planning appeal in respect of proposed housing development – Appeal turning on whether sufficient five-year supply of deliverable housing sites available to meet requirements of national planning policy framework – Inspector taking into account strategic sites included in draft core strategy when assessing housing supply and concluding supply sufficient – Whether inspector erring in failing to consider previous decisions that strategic sites to be excluded – Claim allowed The claimant developer appealed to the defendant’s planning inspector against the local council’s non-determination of its application for planning permission to build up to 50 houses on land in Purton, Wiltshire. An inquiry was held at which the inspector identified, as one of the main issues, whether there were material considerations outweighing the presumption in the development plan against development in the countryside. In relation to that issue, he considered whether there was a supply of specific deliverable sites in the area sufficient to meet the council’s housing requirements for five years, with an additional buffer of 5% to ensure choice and competition in the market for land, as required by para 47 of the National Planning Policy Framework (NPPF). In that connection, a dispute arose as to whether strategic sites that were included in the council’s draft core strategy and another draft planning document should be included for the purpose of assessing housing supply; the claimant contended that those sites were not “deliverable” within the meaning of the NPPF while the council contended that they were. After the inquiry hearing ended, two decisions of another inspector were promulgated in respect of another site in Calne, Wiltshire; those decisions decided that the strategic sites should be excluded from consideration of the supply of deliverable sites for housing. The inspector who determined the claimant’s appeal did not consider those decisions; he concluded that a five-year housing supply had been shown and, in doing so, took into account the strategic sites. He dismissed the claimant’s appeal accordingly. The claimant brought proceedings under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. They contended that he had erred in finding that a five-year housing supply existed; they submitted that he had failed to take into account the two decisions in respect of the site in Calne as a material consideration or give reasons for not following the approach of the inspector in those cases. Held: The claim was allowed. A previous inspector’s planning decision was capable of being a material consideration, although the importance to be attached to it would depend on the extent to which the issues decided in that decision overlapped with those currently under consideration and whether the planning regime or development plan at the time of the previous decision had been similar to or significantly different from the current planning context. Although an inspector always had to exercise his own judgment, he was required to have regard to the importance of consistency such that, where he disagreed with some critical aspect of a previous decision, he should give his reasons for departing from it: North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR 137; [ 1992] 3 PLR 113 applied. Although the procedural framework for planning inquiries was designed to ensure that all relevant materials were available to the inspector and the parties according to an orderly timetable, there would inevitably be occasions when information that was material to the inspector’s decision would become available for the first time at a date that prevented compliance with the normal framework and rules. The inspector therefore had a discretion to admit materials that had not been provided in accordance with the normal procedural timetable up to the time when he made his decision. The inspector’s decision in the instant case should be quashed since he had failed properly to exercise his discretion and had given inadequate reasons for deciding not to take the Calne decisions into account. There was no evidence that he had carried out any reasoned assessment of the materiality of those decisions or any reasonable balancing exercise to decide whether they should be admitted. Had he done so, he should have decided to admit the decisions, pursuant to his duty to take into account all matters that might cause him to reach a different conclusion and to have regard to material considerations up to the time that he made his decision. The Calne decisions were very recent decisions dealing with the same issues as were central to the claimant’s appeal. They did not simply repeat something that was already before the inspector. Their admission could have been handled in a manner that was procedurally fair to the parties and there was no evidence that it would have been necessary to re-open the inquiry or that significant delay would have been caused by admitting the decisions. It was central to the claimant’s case before the inspector that there was an insufficient supply of deliverable sites for housing. The issue for the inspector was whether the strategic sites were “deliverable”. Although the existence of planning permission was not a necessary prerequisite of a site being deliverable, where sites were included in an emerging policy document that was still subject to public examination, that increased the lack of certainty as to the outcome. The weight to be attached to the inclusion of the sites by the local planning authority could only be determined by reference to the quality of the evidence base, the stage of progress that the draft documents had reached and knowledge of the number and nature of objections that might be outstanding. The decisions in relation to the Calne site were highly material and potentially decisive on the issue of deliverability. Those decisions had been made after the introduction of the NPPF and directly addressed its requirements. They were relevant both geographically, since they addressed the same draft core strategy and other aspects of the development plan as applied to the claimant’s appeal, and in relation to timing, since they addressed those matters at the same stage of their progress as applied to the claimant’s appeal. They had decided that, in the absence of any site-specific evidence in relation to most of the strategic sites, the stage of progress of the development plan and the council’s evidence base did not justify the inclusion of the strategic sites as deliverable. There was a real possibility that a consideration of the Calne decisions would have led the inspector to a different conclusion on the claimant’s appeal. Although he would have been entitled to disagree with those decisions, he would first have been required to have regard to the importance of consistency and to give his reasons for departing from them on a critical aspect in relation to deliverability. David Manley QC (instructed by Ashfords LLP, of Exeter) appeared for the claimant; Lisa Busch (instructed by the Treasury Solicitor) appeared for the defendant. Sally Dobson, barrister
