St Modwen Developments Ltd v Secretary of State for Communities and Local Government & Ors

Factual and Procedural Background

The appeal concerns a statutory challenge to a decision on planning permission refusal for a large housing development on land at Brickyard Lane, Melton Park, approximately 13 kilometres west of Hull. The appellant, Company A, appealed against the dismissal by Judge Ouseley of its application under section 288 of the Town and Country Planning Act 1990. The challenge targeted the Secretary of State for Communities and Local Government's decision letter dismissing two appeals under section 78 against the refusal of planning permission by the local council, Company B. A third party, an objector group, opposed the development.

The site spans about 38 hectares, mostly allocated for employment development in various local plans. Two schemes were proposed: Appeal A for up to 510 dwellings, and Appeal B for up to 390 dwellings plus employment land. The council refused permission citing loss of employment land, conflict with settlement hierarchy, and prejudice to the emerging local plan. The appeals were recovered for Secretary of State determination following a lengthy inquiry. The inspector recommended dismissal, which the Secretary of State accepted. Company A sought judicial review of this decision, challenging the application of government housing supply policy, particularly regarding the five-year housing land supply requirement under the National Planning Policy Framework (NPPF).

Legal Issues Presented

1. Did the Secretary of State misinterpret or misapply government policy on the supply of housing in paragraph 47 of the NPPF, specifically the concepts of "supply" and "delivery", and were the reasons for his decision clear and adequate?
2. Did the Secretary of State misdirect himself or fail to provide clear and adequate reasons regarding the council's housing trajectory?
3. Did the Secretary of State err in law in his conclusions on the council's record of housing delivery?

Arguments of the Parties

Appellant's Arguments

• The Secretary of State misunderstood the NPPF policy on the five-year housing land supply, conflating "deliverability" with "expected delivery" and failing to assess what would probably be delivered within five years.
• The inspector and Secretary of State failed to properly consider the council's housing trajectory, which showed a lower rate of housing delivery, thus undermining the claimed five-year supply.
• The council's record of past housing delivery was poor and not adequately addressed, with the inspector failing to explain how the claimed supply reconciled with the low local delivery record.
• The Secretary of State should have taken into account updated Planning Practice Guidance (PPG) published after the inquiry but before the decision.

Respondent's Arguments

• The inspector and Secretary of State correctly distinguished between "deliverability" and "delivery"; the policy requires identification of sites capable of delivery, not certainty of delivery.
• The housing trajectory was considered as a material factor but was not a principal issue; the inspector's reasons on this were adequate and clear.
• The council's record of delivery was properly addressed through the application of a 20% buffer to account for persistent under delivery.
• The Secretary of State was not required to explicitly address updated PPG guidance as it did not materially alter the legal principles or outcome.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin)	Seven principles guiding section 288 challenges to planning decisions, including flexible construction of decisions and limits of court review on planning merits.	The court reaffirmed these principles as the framework for reviewing the Secretary of State's decision.
Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26	Decision letters need not rehearse every argument but must be intelligible and adequate.	Supported the view that the inspector's report and decision letter were sufficiently clear.
South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953	Reasons must enable understanding of why appeal was decided, focusing on principal issues.	Applied to assess adequacy of reasons given by inspector and Secretary of State.
Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759	Planning judgments on weight of considerations are for decision-makers, not courts.	Supported the exclusive jurisdiction of the Secretary of State and inspector on planning merits.
Tesco Stores v Dundee City Council [2012] PTSR 983	Proper interpretation of planning policy is a legal matter; misapplication may amount to ignoring material considerations.	Confirmed the court's role in interpreting the NPPF policy correctly.
South Somerset District Council v Secretary of State for the Environment (1993) 66 P. & C.R. 80	Assessment of whether inspector misunderstood relevant policy by reviewing the issues considered.	Used to determine whether the inspector misunderstood the NPPF policy on deliverability.
Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB)	Absence of mention of a policy in decision letters does not necessarily mean it was ignored.	Supported that the inspector and Secretary of State had regard to relevant policies even if not explicitly referenced.
Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198	Consistency in decision-making is important but not a legal requirement for identical outcomes in similar cases.	Reinforced discretion of decision-makers in planning judgments.
North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137	Decision-makers may give weight as they see fit to material considerations.	Supported the inspector's discretion in weighing housing supply evidence.
Suffolk Coastal District Council v Hopkins Homes Ltd. [2017] UKSC 37	Limits on court's role in construing planning policy and deference to decision-makers.	Emphasized deference to Secretary of State and inspector's expertise in applying NPPF policy.
Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893	Warning against excessive legalism in planning challenges.	Supported a cautious approach to legal challenges on planning decisions.
City and District Council of St Albans v Hunston Properties Ltd. [2013] EWCA Civ 1610	Interpretation of deliverability in the context of housing land supply.	Referenced in understanding deliverability under paragraph 47 of the NPPF.
Solihull Metropolitan Borough Council v Gallagher [2014] EWCA Civ 1610	Clarified the meaning of deliverability and supply in housing policy.	Applied in assessing the inspector's and Secretary of State's interpretation of the NPPF.
Wainhomes (South West) Holdings Ltd. v Secretary of State for Communities and Local Government [2013] EWHC 597 (Admin)	Deliverability is fact-sensitive; inclusion in emerging local plan is evidence of deliverability.	Used by the inspector to assess deliverability of sites in the emerging local plan.
Oadby and Wigston Borough Council v Secretary of State for Communities and Local Government [2016] EWCA Civ 1040	Planning judgment on housing land supply credibility is for decision-makers, not courts.	Supported refusal to interfere with inspector's planning judgment on housing supply.
Eastleigh Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 4225 (Admin)	Limits of court intervention in planning judgment on housing supply.	Reinforced the principle that planning judgment is not reviewable on merits.

Court's Reasoning and Analysis

The court carefully examined the statutory and policy framework governing housing land supply, focusing on paragraphs 47 and 49 of the NPPF and relevant Planning Practice Guidance. It emphasized the distinction between "deliverable" sites—those with a realistic prospect of delivery within five years—and the actual "delivery" or expected rate of housing completions, which is inherently uncertain and influenced by market factors beyond the control of local planning authorities.

The court found no error in the inspector's or Secretary of State's interpretation or application of this policy. The inspector's reasoning was sufficiently clear and adequate, addressing the principal issues of housing land supply, including the weight to be given to emerging local plan allocations and the council's housing trajectory. The inspector appropriately exercised planning judgment in concluding that the council had demonstrated a five-year supply of deliverable housing sites, notwithstanding uncertainties in actual delivery rates.

The court rejected the appellant's argument that the inspector failed to give proper reasons or to consider the housing trajectory adequately. It held that the housing trajectory was a material consideration but not a principal issue, and the inspector's reasons were intelligible and adequate. The court also rejected the claim that the inspector or Secretary of State failed to have regard to the council's past housing delivery record, noting that the application of a 20% buffer to address persistent under delivery was lawful and appropriate.

Further, the court declined to find fault with the Secretary of State for not explicitly addressing revised PPG guidance published after the inquiry, as it would not have materially affected the lawful conclusions reached.

Overall, the court underscored the limited role of judicial review in planning decisions, deferring to the planning judgment of the inspector and Secretary of State, provided their decisions were rational, adequately reasoned, and consistent with the law and policy.

Holding and Implications

The court DISMISSED the appeal.

The decision confirms that the Secretary of State and planning inspectors are entitled to distinguish between the deliverability of housing sites and the probability of their actual delivery within five years, consistent with the NPPF. The ruling reinforces the principle that planning judgments on housing land supply and the weight given to evidence such as housing trajectories and past delivery records are matters for the decision-maker and not for judicial interference unless there is a legal error. No new legal precedent was established; the appeal was dismissed on the basis that the decision under challenge was lawful and properly reasoned.