Oadby And Wigston Borough Council v Secretary of State for Communities And Local Government & Anor

In assessing five-year housing land supply, the housing requirement must reflect the full objectively assessed need for housing, leaving aside policy choices. A purportedly policy-off assessment becomes policy-on where it excludes employment-related housing need or affordable housing need on the assumption that neighbouring authorities, or the private rented sector, will meet it.

An inspector need not determine the precise housing requirement where a conservative figure is sufficient to show that the authority lacks a five-year supply. The adoption of that figure is a planning judgment reviewable only for legal error or irrationality. A decision letter must be read fairly and as a whole.

The Council refused planning permission for up to 150 dwellings outside the Leicester Principal Urban Area. On appeal under section 78 of the Town and Country Planning Act 1990, the Inspector allowed the appeal and granted outline permission.

The Council challenged the decision under section 288 of the 1990 Act. The central issue was whether the Inspector had lawfully assessed the full objectively assessed need for housing, including employment-related and affordable housing need, and had been entitled to use 147 dwellings per annum as an indicative figure when determining whether a five-year housing land supply existed.

1. Claim dismissed. The Inspector was entitled to conclude that the Strategic Housing Market Assessment figures for Oadby and Wigston were policy-on rather than a proper policy-off assessment of full objectively assessed need.
2. Where an authority excludes housing for additional workers generated by local employment on the assumption that neighbouring authorities will accommodate them, that is a policy-on decision unless there is evidence, an adopted plan or an agreement showing that the additional need will be met elsewhere. The same applies to affordable housing need.
3. Benefit-subsidised private rented accommodation does not fall within the planning definition of affordable housing. Treating the private rented sector as meeting affordable housing need is itself a policy intervention and cannot be used to exclude that need from the objectively assessed figure.
4. The Inspector was not required to fix the precise housing requirement. His task was to decide whether the Council had demonstrated a five-year supply. He could adopt a conservative figure of 147 dwellings per annum where the evidence did not persuade him that the figure was lower and the result remained substantially the same.
5. The choice of housing requirement was an exercise of planning judgment. The court could intervene only for an unlawful approach or an irrational conclusion. The decision letter had to be read fairly and as a whole; it was sufficiently clear that the Inspector had not adopted the discredited analysis underlying one expert scenario.
6. The challenges based on the 2012-based projections, paragraph 47 of the NPPF, failure to calculate separate market and affordable figures, and the private rented sector therefore failed. The application was dismissed.

First-instance judicial review of an Inspector’s decision allowing a planning appeal under section 78 of the Town and Country Planning Act 1990. The claim under section 288 of that Act was dismissed.