Cotswold District Council v Secretary of State for Communities And Local Government & Anor

Persistent under-delivery of housing under paragraph 47 of the National Planning Policy Framework is a continuing state of affairs, assessed over a reasonable period measured in years. The decision-maker may use previous plan targets and other evidence of housing need, including evidence that historic targets understated actual need. A 20% buffer may be justified despite an economic downturn where the wider record demonstrates persistent under-delivery.

Previous inspector decisions are potentially material when drawn to the decision-maker’s attention, but there is ordinarily no duty to search for them. Major development in an Area of Outstanding Natural Beauty may satisfy the exceptional-circumstances and public-interest requirements where there is pressing housing need and limited scope for alternatives.

The local planning authority brought two applications to quash decisions allowing outline planning appeals for residential development at Highfield Farm and Berrells Road, both within an Area of Outstanding Natural Beauty. It also sought judicial review of a partial award of costs in the Berrells Road appeal.

The challenges concerned the interpretation of paragraph 47 of the National Planning Policy Framework, the use of a 20% housing buffer, the assessment of deliverable sites, the relevance of an earlier Kemble appeal decision, the treatment of development policy and the application of paragraph 116 to major development in an Area of Outstanding Natural Beauty. The central issues were whether the Secretary of State had misinterpreted the policy, failed to consider a material decision, or acted irrationally on costs.

1. Disposition. The two applications to quash under section 288 of the Town and Country Planning Act 1990 were dismissed. Permission to apply for judicial review of the costs decision was granted, but the claim was dismissed.
2. Persistent under-delivery. Paragraph 47 of the Framework had to be read objectively, in context and having regard to its purpose. Persistent under-delivery meant under-delivery continuing over time. The decision-maker had to assess performance over a reasonable period measured in years, against an appropriate measure of housing requirements. The precise period and measure were matters of judgment. It was lawful to consider five-year, ten-year and twenty-year periods and to annualise figures to allow for fluctuations.
3. The previous Structure Plan figures were a permissible benchmark, but not the exclusive measure. More recent evidence showing that those figures understated actual housing need could reinforce the conclusion that there had been persistent under-delivery. The inspector had considered the economic downturn but was entitled to conclude that the wider record, including under-delivery before the downturn, justified a 20% buffer.
4. Material considerations. Whether a matter was material was a question of law, while its weight was for the decision-maker. Obviously material statutory or policy considerations had to be considered whether or not drawn to attention. Other potentially relevant matters had to be considered if drawn to attention. Previous inspector decisions could be material; if drawn to attention, consistency and reasons for departure had to be addressed. There was ordinarily no duty to investigate or search for decisions not drawn to attention. The Kemble decision had not been drawn to the Secretary of State’s attention, so there was no unlawful omission. Even if there had been, the later inspector had considered the relevant evidence and given lawful reasons for a different approach.
5. The inspector was entitled to adopt a reasonable lapse rate when assessing deliverable sites under footnote 11. Local Plan Policy 19 was a policy relating to housing supply and was out of date to the extent that it restricted housing supply where no five-year supply existed. In the Highfield appeal, the inspector properly applied paragraph 116: harm to the Area of Outstanding Natural Beauty was acknowledged, but pressing housing need and very limited alternative locations amounted to exceptional circumstances in the public interest.
6. Costs. Whether conduct was unreasonable was a matter of judgment. Different inspectors could rationally reach different conclusions on the same facts. The Berrells Road costs decision was therefore not irrational, and the Secretary of State was not required to search for the unnotified Kemble costs decision.

These were first-instance proceedings. The judgment records that the Secretary of State allowed the Highfield and Berrells Road planning appeals on 13 February 2013 and accepted a partial costs recommendation on 25 March 2013. No earlier court judgment is stated.