Factual and Procedural Background
The appeal concerns the refusal of outline planning permission for a housing development comprising up to 225 dwellings, a 60-bed care home, 40 care units, public open space, woodland, and station improvements on a 23-hectare site in a protected countryside area within a local gap. The appellant challenged the Secretary of State's dismissal of their appeal against the local council's refusal of planning permission. The site was not allocated for development in the local plan and was subject to restrictive policies protecting the countryside and local gaps.
An inquiry was held in June 2015, during which the appeal was recovered by the Secretary of State due to the scale of residential development proposed. The inspector recommended dismissal, and the Secretary of State, after receiving further representations including references to recent appeal decisions assessing housing land supply, agreed with the inspector and dismissed the appeal. The appellant then brought a challenge under section 288 of the Town and Country Planning Act 1990, which was dismissed by the High Court judge. This appeal arises from that dismissal.
Legal Issues Presented
- Whether the Secretary of State was required to establish with sufficient precision the extent of any shortfall in the five-year supply of housing land and provide adequate reasons for his conclusions.
- Whether the Secretary of State erred in law by failing to have regard to the inspector's report on a related appeal (the Boorley Green appeal) when deciding the appellant's case.
Arguments of the Parties
Appellant's Arguments
- The Secretary of State was obliged to determine the precise level of housing land supply shortfall because it affects the balancing exercise under paragraph 14 of the National Planning Policy Framework (NPPF).
- The Secretary of State failed to engage properly with material evidence, including recent appeal decisions showing a significant shortfall greater than he acknowledged.
- The Secretary of State did not provide intelligible and adequate reasons for concluding the shortfall was "limited" despite evidence to the contrary.
- The Secretary of State should have taken into account the inspector's report on the Boorley Green appeal to avoid inconsistent decision-making.
Respondents' Arguments
- The decision-maker is not always required to calculate an exact figure for the housing land supply shortfall; it is sufficient to determine whether the supply is above or below five years.
- The Secretary of State's planning judgment on the extent of the shortfall and the weight to be given to it was lawful and reasonable.
- The inspector's report on the Boorley Green appeal was not a material consideration at the time of the Secretary of State's decision as it was not yet a decision, only advice.
- The Secretary of State gave adequate reasons and properly exercised his planning judgment in the circumstances.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Suffolk Coastal District Council v Hopkins Homes Ltd. [2016] EWCA Civ 168 |
Clarification of the application of the NPPF paragraphs 14 and 49 regarding five-year housing land supply and the "tilted balance". |
The court applied the principles emphasizing that the decision-maker must assess whether there is a five-year supply and exercise planning judgment on the weight to be given to shortfalls and restrictive policies. |
| Phides Estates (Overseas) Ltd. v Secretary of State [2015] EWHC 827 (Admin) |
Requirement to establish the extent of housing land supply shortfall for planning decisions. |
Rejected as a strict requirement; the court held that the decision-maker need not fix a precise figure in every case. |
| Shropshire Council v Secretary of State [2016] EWHC 2733 (Admin) |
Whether a detailed analysis of housing supply shortfall is required in all cases. |
Held that detailed analysis depends on circumstances and is not always necessary. |
| Jelson Ltd. v Secretary of State [2016] EWHC 2979 (Admin) |
Support for decision-maker's discretion in assessing housing land supply shortfall. |
Endorsed the principle that the extent of shortfall is a matter of planning judgment. |
| South Oxfordshire District Council v Secretary of State [2016] EWHC 1173 (Admin) |
Planning judgment on the necessity of detailed housing supply analysis. |
Confirmed that full analysis is not always necessary and depends on case circumstances. |
| Dartford Borough Council v Secretary of State [2016] EWHC 649 (Admin) |
Decision-maker's discretion in housing supply assessment. |
Supported the view that the degree of precision is a matter of planning judgment. |
| City and District Council of St Albans v Hunston Properties Ltd. [2013] EWCA Civ 1610 |
Warning against detailed supply calculations in appeals, which are more appropriate for plan preparation. |
Referenced to caution against detailed housing supply calculations in appeal contexts. |
| South Bucks District Council v Porter [2004] 1 WLR 1953 |
Requirement for decision-makers to provide intelligible and adequate reasons. |
The court held that failure to provide adequate reasons can vitiate a decision. |
| North Wiltshire District Council v Secretary of State (1993) 65 P. & C.R. 137 |
Principle of consistency in planning decision-making. |
Applied to require explanation for inconsistent decisions in similar cases. |
| DLA Delivery Ltd. v Baroness Cumberlege of Newick and Secretary of State [2018] EWCA Civ 1305 |
Reaffirmation of the principle of consistency in planning decisions. |
Confirmed that consistency is a principle of good practice, not law, and requires explanation for inconsistencies. |
| Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] 3 W.L.R. 641 |
Duty of decision-makers to take reasonable steps to acquaint themselves with relevant matters. |
Held that the Secretary of State was not obliged to consider unpublished inspector reports as binding decisions. |
| Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 WLR 759 |
Weight to be given to planning policies is a matter of planning judgment. |
Applied to affirm that weight varies with circumstances and is not a legal question. |
Court's Reasoning and Analysis
The court examined the central issue of the extent to which the Secretary of State was required to determine the precise level of the shortfall in the five-year housing land supply. It acknowledged that while the existence of a shortfall is critical to engage the "tilted balance" under paragraph 14 of the NPPF, the degree of precision required in quantifying that shortfall is a matter of planning judgment rather than a strict legal requirement.
The court noted that the Secretary of State had accepted the absence of a five-year supply and had applied the presumption in favour of sustainable development accordingly. However, the court found that the Secretary of State's decision letter did not engage adequately with recent appeal decisions (Bubb Lane and Botley Road) which had concluded a significant shortfall materially different from the "limited" shortfall described in the decision letter.
The failure to address these recent, relevant decisions and the absence of adequate reasons for the conclusions on the extent of the shortfall and the weight to be given to restrictive policies (notably policy 3.CO) rendered the Secretary of State's decision legally deficient. This failure was prejudicial to the appellant and justified quashing the decision.
Regarding the second issue, the court held that the Secretary of State was not required as a matter of law to have regard to the unpublished inspector's report on the Boorley Green appeal at the time of his decision. The principle of consistency in planning decision-making is one of good practice, not law, and does not extend to unpublished reports which are advice rather than decisions. The court agreed with the lower court that no material inconsistency arose between the decisions.
The court emphasized that the weight to be given to housing supply shortfalls and conflicting policies is a matter for planning judgment, informed by the material before the decision-maker, and that no hard and fast rule requires exact quantification in every case. Nonetheless, where the extent of the shortfall is a principal controversial issue, adequate reasons and engagement with material representations are required.
Holding and Implications
The court ALLOWED the appeal on the first issue, concluding that the Secretary of State's decision was vitiated by a failure to provide adequate reasons and to properly engage with material representations regarding the extent of the housing land supply shortfall and its consequences for the planning balance.
The appeal was dismissed on the second issue, with the court holding that the Secretary of State was not legally required to have regard to an unpublished inspector's report on a related appeal at the time of decision.
The direct effect of this decision is that the Secretary of State’s decision dismissing the appellant's appeal is quashed and remitted for reconsideration with proper engagement on the housing land supply shortfall and reasons. No new precedent was established beyond clarifying the extent of the duty to provide reasons and engage with material evidence in such planning appeals.