Homes refusal overturned on procedural unfairness

The secretary of state's decision to reject plans for up to 180 homes in Gloucestershire against an inspector's advice has been overturned by the High Court as procedurally unfair.

Following a public inquiry, the inspector recommended that permission be granted (DCS Number 200-005-951), finding a housing land supply of around 3.7 years. While recognising that the scheme would cause some landscape harm and loss of some high-quality farmland, she advised that the benefits of boosting the supply of open market and affordable housing carried greater weight.

The decision letter, issued almost a year later, referred to further information on the council’s website suggesting that further progress had been made on determining the overall housing requirement and the land supply position. This indicated that the council could show more than five years’ supply if the backlog was addressed over a five-year or ten-year period. The secretary of state concluded that the likely supply lay between 3.7 and five years. He disagreed with the inspector on the planning balance and decided that the harm caused by the scheme significantly and demonstrably outweighed its benefits.

The claimants argued that the secretary of state’s consideration of the case breached rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, since he had clearly relied on new evidence without providing an opportunity for the main parties to comment. Moreover, they argued, the decision failed to reflect the position agreed at the inquiry that, at best, the land supply was no more than 4.1 years.

Citing Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government [2015], they argued that the magnitude of the shortfall was a relevant consideration in assessing where the planning balance lay and the decision letter failed to adequately explain what weight had been applied to this matter.

Mr Justice Jay agreed with the claimants. In his opinion, the inspector’s report had been impeccably reasoned and the balancing exercise she had undertaken was clear. In contrast, he found, the secretary of state had interrogated the council’s website and found that the land supply issue had "moved on", "progress" had been made and an "improved" picture had emerged.

The secretary of state, he held, had not proceeded on the basis that the supply stood at 3.7 years, as advanced by the claimant and agreed by the inspector after careful analysis. Consequently, he was unable to conclude that the secretary of state would have made the same decision if he had simply adopted the inspector’s estimate of housing land supply. The decision was quashed.

Gladman Developments Ltd v Secretary of State for Communities and Local Government & Forest of Dean District Council

Date: 6 October 2017

[2017] EWHC 2448 (Admin)

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