Hunston Properties Ltd v Secretary of State for Communities and Local Government

When assessing whether housing need may constitute very special circumstances justifying inappropriate development in the Green Belt, the decision-maker must first identify the full objectively assessed housing need. A housing figure adjusted to reflect development constraints cannot be used to determine the extent of unmet need. The effects of other planning policies, including Green Belt policy, must then be considered and weighed against the harm caused by the proposed development. Those later assessments are matters of planning judgment. A challenge under section 288 of the Town and Country Planning Act 1990 corrects legal errors and failures to consider material matters; it does not permit a merits review.

The claimant challenged an inspector’s dismissal of its section 78 planning appeal concerning a proposed development of housing and a care home in the Metropolitan Green Belt. It also sought judicial review of the inspector’s decision awarding the council 20% of its inquiry costs.

The planning appeal had been dismissed because the inspector treated an annual housing figure of 360 dwellings, derived from the revoked East of England Plan, as the relevant target. The claimant argued that the inspector should have begun with the Department for Communities and Local Government projections of objectively assessed need. The central issues were whether that approach involved an error of law and whether the costs decision was irrational.

1. Planning appeal. The substantive appeal succeeded and the inspector’s decision was quashed. Under paragraphs 14, 47, 87 and 88 of the National Planning Policy Framework, the decision-maker had to identify the full objectively assessed need for market and affordable housing before considering the supply of specific deliverable sites and the effect of other planning policies.
2. A figure derived from the revoked regional strategy was constraint-adjusted and expressly did not represent full housing need. It therefore could not be used to assess whether unmet housing need constituted a very special circumstance. The proper sequence was to assess full need, identify the unmet need having regard to deliverable supply, and then decide whether that need, together with the other matters relied upon, clearly outweighed the harm to the Green Belt. The final balancing exercise remained a matter of planning judgment for the inspector.
3. The inspector’s reference to the Cabinet resolution as a resolution of the Council was immaterial. The document before her made the decision-making body clear. The resolution did not remove the policy vacuum and its weight was a matter for the inspector on remittal.
4. Costs judicial review. Permission was granted, but the claim was dismissed. The award of costs was a discretionary decision. The inspector was entitled to conclude that the claimant had acted unreasonably by reopening matters insufficiently changed since the earlier appeal, including the care-home need and matters concerning primary facts. An inspector must conduct her own balancing exercise, but need not reconsider primary factual findings where no genuinely material change has occurred.

The judgment records an earlier planning appeal concerning the same site, dismissed by a different planning inspector in July 2012. The present court quashed the later inspector’s substantive decision under section 288, but dismissed the separate judicial review challenge to the costs award.