How a council's attempt to overturn an inspector's assessment of its housing land supply foundered in court

A High Court ruling has dismissed a council's attempt to challenge an aspect of an appeal decision, which found it had an inadequate housing land supply. But a key issue of whether housing oversupply should be taken into account for land supply calculations has been left unresolved, say legal experts.

London's Royal Courts of Justice
London's Royal Courts of Justice

A High Court judgment issued earlier this month concerned plans for 40 homes at Highnam on the outskirts of Gloucester. The case was brought by the local planning authority Tewkesbury Borough Council, which sought to challenge a key aspect of the recovered appeal decision. So far, so routine. The case was notable, however, for the fact that Tewkesbury was not seeking to overturn the ruling; which had seen the appeal dismissed by the secretary of state following the recommendation of his inspector. It therefore represented a rare example of an appeal victor challenging an inspector’s findings.

Making its case at a public inquiry in May 2018, Tewkesbury argued that it could demonstrate a five year housing land supply as required by the National Planning Policy Framework (NPPF). The council’s claim relied on the delivery of 704 homes above its joint core strategy target in the first seven years of the plan. Tewkesbury said this oversupply should be taken into account when calculating its land supply; producing a figure of 5.58 years. The inspector and the secretary of state disagreed, advising that the oversupply could not be "banked" for future years, concluding that the true figure was 3.99 years. The appeal was instead dismissed on grounds of design standards and protection of landscape character.

In February, Tewkesbury Council was granted leave to seek a judicial review of this aspect of the case. During subsequent hearings, a Tewkesbury planning officer stated that the appeal decision put the authority "at risk of sporadic, unplanned and piecemeal development".

However, Mr Justice Dove ruled that it would be inappropriate for the High Court to rule on this specific issue. He said: "The court should not proceed to determine this application, as it does not fall within the class of exceptional cases where the determination of an academic dispute about the reasons for a decision, rather than the decision itself, is warranted." Dove advised that the correct approach to calculating housing land supply "is a matter which can be perfectly properly ventilated and re-examined in a subsequent appeal if there is good reason to do so".

Law firm Shoosmiths represented land promoter Robert Hitchins, an interested party in the Tewkesbury case. Planning specialist and partner Tim Willis said a critical factor was the judge’s ruling that "appeal decisions are not binding precedents", which means that such arguments around housing land supply calculations can be adequately dealt with during future appeals. He added: "What comes across is that the courts won’t interfere with the planning judgments of inspectors or the secretary of state."

According to Willis, the judgment leaves unresolved the issue of whether an oversupply of housing in the early years of a local plan should affect calculations of housing land supply. Dove noted that national policy is "silent on the matter of oversupply". Annette Roberts, head of development at Tewkesbury Council, said it was "obviously disappointing" that the judge "declined to make any ruling on advance delivery and five year housing supply". "It means that these arguments still need to be had," she said. "It’s understood that the secretary of state may issue guidance on the matter but our position continues to be that it is correct to count previous advance delivery within five-year housing supply calculations."

Iain Gilbey, head of planning at law firm Pinsent Masons, said it was unlikely to be long before the question of oversupply comes up again at appeal. "I think it’s going to be tested all the time," he said. Gilbey said a series of cases centred on the issue may cause a judge to reassess whether "exceptional circumstances" exist to justify a court ruling on the matter – an exercise likely to be hindered by the absence of policy to interpret. "The only approach that can help us on this is the secretary of state publishing a written ministerial statement to supplement the NPPF – or for the next iteration of the NPPF to deal with this point," said Gilbey. "Anything else will be inconclusive."

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