Planning inspector was entitled to accept developer's housing figures over local plan numbers, High Court rules

Out-Law News | 23 Feb 2016 | 12:27 pm | 2 min. read

The High Court has ruled that a planning inspector was not wrong to find that the housing supply figures in a council's local plan were out of date and to accept alternative figures put forward by a developer as the basis for calculating the housing supply position for the purposes of a planning appeal.

West Berkshire District Council had refused permission for a 129-home scheme outside the settlement boundary of the village of Burghfield Common near Reading. However, planning inspector Kevin Ward granted permission for 90 homes at the site last July following an appeal from developer HDD Burghfield Common (HDD) (19-page / 196 KB PDF).

The Council had adopted a core strategy in 2012 with housing targets based on figures in the revoked 2009 South East Plan. The inspector examining the core strategy had identified that these figures were out-of-date and recommended that a strategic housing market assessment (SHMA) should be completed within three years of adoption (36-page / 200 KB PDF), to enable the figures to be altered and the core strategy to be brought into compliance with national planning policy.

No SHMA had been carried out by the time Ward made his decision in 2015. The inspector, therefore, found that the housing requirement in the core strategy was not an appropriate basis for calculating the necessary five year supply of housing land in the area. The only new evidence before the inspector had been produced by HDD for the purposes of the appeal. Ward decided that, despite certain limitations, one of the scenarios put forward by HDD provided "an appropriate starting point in calculating a five year housing requirement".

Finding that the Council's housing supply fell short of that required "by a very considerable margin", Ward had found that the Council's housing policies were not up-to-date and should be given reduced weight in the decision-making process.

High Court judge Mr Justice Supperstone ruled that Ward had been "entitled to depart from the [housing] figure in the development plan" on the basis of the "material considerations" that "the figures were not up to date and ... there was 'significant new evidence' available which was of assistance".

Mr Justice Supperstone disagreed with the Council's view that the inspector had treated the figure put forward by HDD as the equivalent of an objectively assessed housing need figure. He noted that Ward "was required to identify an annual housing requirement", in order to test whether the Council had a five year supply of housing land and had properly explained why he favoured the figure put forward by HDD, which was based on the latest government household projections.

The judge said the weight to be given to the Council's out-of-date housing policies was "a matter of planning judgment for the inspector". He rejected claims that Ward had failed to apply the correct planning tests or to give adequate reasons for his decision.

Planning expert Elizabeth Wiseman of Pinsent Masons, the law firm behind Out-Law.com, said: "This judgment has significant implications for the housing industry.  It confirms that whether housing policies should be considered up-to-date is a matter of planning judgment to be exercised by the Inspector but moreover it will give Inspectors greater confidence to move away from the adopted local plan to accept alternative figures from appellants at inquiry."

"The judgment sends a clear message to local planning authorities that they can no longer rely on out-of-date housing figures and if they do not have an up to date local plan in place they could face similar decisions at appeal or in court," she said.