Exeter City Council v Secretary of State for Communities and Local Government & Ors

In a challenge to a planning appeal decision, the court confirmed that housing supply must be assessed against the adopted housing requirement and the relevant national policies. Student accommodation cannot automatically be counted towards that supply. It may be counted only to the extent that its provision releases accommodation into the general housing market, supported by evidence.

The interpretation of planning policy is a question of law, while the weight given to material considerations is a matter of planning judgment subject to rationality. An inspector’s decision letter must be read fairly, as a whole and in a practical manner. A court may decline to quash a decision for an immaterial error where the outcome would inevitably have been the same.

The claimant planning authority refused permission for 120 dwellings at Home Farm, Pinhoe. On appeal after a public inquiry, the Secretary of State’s inspector allowed the appeal and granted permission.

The Council applied under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. It alleged errors concerning the treatment of student accommodation in the housing requirement and five-year housing supply, and contended that the inspector had applied impermissible tests. The central issue was whether the inspector had misinterpreted the National Planning Policy Framework and Planning Practice Guidance.

1. The application was dismissed. The inspector had not erred in law in concluding that student accommodation should not be included in the housing land supply in this case.
2. Paragraph 3.38 of the Planning Practice Guidance did not permit or require all new student accommodation to be counted towards the housing requirement. It permitted account to be taken of accommodation released into the general housing market as a result of providing student accommodation. The inspector was entitled to find that no such release had been demonstrated, particularly since the number of general-market dwellings occupied by students had increased.
3. The inspector had understood that the adopted requirement contained an element attributable to students living in general-market housing. However, the Council had produced no evidence establishing the relevant proportion. The inspector was therefore entitled not to attribute any specific part of the requirement to student accommodation.
4. The inspector’s reference to a relatively stable student population and a decline in general-market dwellings occupied by students did not create mandatory legal tests. Read fairly and as a whole, the passage gave examples of evidence that might demonstrate release into the general housing market.
5. The court confirmed that the interpretation of planning policy is a matter of law, whereas the weight given to material considerations is a matter of planning judgment subject to rationality. A decision letter must be read as a whole and practically, without demanding exhaustive treatment of every argument.
6. Although the court had power not to quash an unlawful decision where the error was immaterial, that discretion did not arise because no legal error had been established. In any event, the inspector’s uncontested findings showed that the planning benefits would inevitably have outweighed the limited harm represented by the out-of-date landscape policy.

The judgment records that the Secretary of State’s inspector allowed the planning appeal on 29 October 2014 and granted planning permission. This High Court claim under section 288 of the Town and Country Planning Act 1990 seeking to quash that decision was dismissed.