Eastleigh Borough Council v Secretary of State for Communities and Local Government

Whether a housing site is deliverable for the purposes of a five-year housing land supply is a matter of mixed fact and judgment for the planning decision-maker. The decision-maker must apply the relevant policy and guidance, consider material matters, and exclude immaterial matters. The weight given to material considerations is for the decision-maker and cannot ordinarily be challenged under the error-of-law jurisdiction merely because another view is possible. Where a council cannot demonstrate the required supply on alternative calculations, the inspector need not identify one definitive reason for the shortfall if the conclusion is common to each alternative.

Taylor Wimpey UK Ltd appealed against the refusal of planning permission for up to 150 dwellings at Hamble Lane, Bursledon. The inspector allowed the appeal, finding that Eastleigh Borough Council had failed to demonstrate a five-year supply of deliverable housing sites. The Council challenged the decision under section 288 of the Town and Country Planning Act 1990, arguing that the inspector had misunderstood deliverability and given excessive weight to matters including the absence of developer information for some sites.

The central issues were whether the inspector had erred in law when assessing deliverability and whether he was required to determine conclusively which particular aspect of the Council’s housing-supply calculations caused the shortfall.

1. The challenge was dismissed. A challenge under section 288 of the Town and Country Planning Act 1990 is confined to errors of law. It is not a vehicle for a full merits review or for disputing the weight assigned to properly identified material considerations.
2. The question whether a particular site is deliverable, and the extent to which it will deliver housing within the relevant five-year period, is a matter of mixed fact and judgment for the inspector. The National Planning Policy Framework and associated planning practice guidance provided the applicable parameters. The inspector was entitled to consider the absence of positive progress information and the fact that no developer had been identified for some sites.
3. The inspector had not failed to consider material matters, relied on immaterial matters, or misunderstood the policy requirements. The Council’s complaint about the weight given to the evidence sought impermissibly to reopen the planning merits. Matters capable of being material may receive different weight in different cases.
4. The inspector’s reasoning on the alternative “Liverpool” and “Sedgefield” methods was sufficient. The Council faced a Morton’s fork: if the Liverpool method applied, it could not also rely on delivery of the claimed 3,447 dwellings; if it relied on that delivery figure, the Sedgefield method applied. Either route left the Council unable to demonstrate a five-year supply.
5. The inspector was not required to decide definitively which of the alternative failures was operative where the common conclusion was that the required supply had not been demonstrated.

The inspector allowed Taylor Wimpey UK Ltd’s planning appeal on 29 April 2014 after Eastleigh Borough Council refused planning permission. The Council then brought this section 288 challenge in the Administrative Court, which dismissed it.