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

When determining whether a local planning authority can demonstrate a five-year housing land supply, a decision-maker is not bound by the apportionment of housing need in a Strategic Housing Market Assessment. The assessment is important evidence, but it is not conclusive.

The decision-maker may assess the full, unconstrained need within the authority’s area and must not adopt a lower requirement produced by an untested redistribution of need between authorities. A securely agreed apportionment may be used where the evidence and inter-authority arrangements justify it. The housing requirement used for development control under paragraph 49 of the National Planning Policy Framework need not equal the housing-market-area figure used in plan-making.

The council challenged an inspector’s decision allowing an appeal and granting outline planning permission for up to 150 dwellings on an unallocated site. Hickinbottom J dismissed the council’s statutory application in [2015] EWHC 1879 (Admin).

The council argued that the inspector had misinterpreted the National Planning Policy Framework by assessing housing need at the level of the council’s administrative area and declining to adopt the distribution contained in a Strategic Housing Market Assessment. The central issue was whether the inspector had lawfully applied paragraphs 47, 49, 157, 158 and 159 when deciding whether the council could demonstrate a five-year supply of deliverable housing sites.

1. Appeal dismissed. The inspector neither misinterpreted nor unlawfully applied the National Planning Policy Framework. His conclusions concerning housing need and supply were exercises of planning judgment which disclosed no irrationality or other error of law.

2. Paragraph 47 principally concerns plan-making, while paragraph 49 principally concerns decisions on planning applications. Paragraph 49 does not prescribe a single method for comparing the five-year housing requirement with the supply of deliverable sites. Its interpretation must permit a realistic and robust comparison of housing need and supply.

3. Where the development plan was not prepared in accordance with the Framework and provided no reliable requirement, the inspector was entitled to evaluate the full, unconstrained housing need within the authority’s area. He was not obliged to accept the Strategic Housing Market Assessment’s apportionment between administrative areas. In particular, he could reject a distribution which had received no independent scrutiny through a local plan examination and was unsupported by a formal and final agreement between the authorities.

4. A decision-maker must not adopt a requirement below the full, unconstrained need by relying upon an untested redistribution of market or affordable housing need to another authority. Questions about commuting, infrastructure, affordable housing and migration commonly require formal inter-authority co-operation and the statutory plan-making process. They are inherently unsuitable for definitive resolution within an appeal under section 78 of the Town and Country Planning Act 1990.

5. An inspector may nevertheless rely upon an apportionment in a Strategic Housing Market Assessment where the evidence and arrangements between the authorities make it a secure basis for decision. The court declined to define exhaustive circumstances in which reliance would be safe. The assessment is important evidence, but it remains open to testing in a local plan examination or development control appeal.

6. There is no necessary inconsistency between full, objectively assessed need across a housing market area for plan-making and the housing requirement determined for one authority’s area under paragraph 49. National policy permits those figures to differ. On the evidence, the inspector was entitled to adopt 147 dwellings per annum as an indicative requirement and to find only 3.6 years’ housing land supply.

1. Court of Appeal (Civil Division): Dismissed the council’s appeal and upheld the inspector’s approach as lawful: [2016] EWCA Civ 1040.
2. Administrative Court, Planning Court: Hickinbottom J dismissed the council’s application challenging the inspector’s decision: [2015] EWHC 1879 (Admin).
3. Planning appeal: The inspector allowed the developer’s appeal against refusal of outline planning permission and granted conditional permission.