Edward Ware Homes Ltd v Secretary of State for Communities and Local Government & Anor

Where a five-year housing land supply cannot be demonstrated, paragraphs 14 and 49 of the National Planning Policy Framework engage a presumption in favour of development, but they do not determine the weight to be given to housing supply or distribution policies. A decision-maker may consider the reasons for a shortfall, the distribution of supply within a district, and whether proposed development would undermine a sound spatial strategy.

Those matters remain subject to procedural fairness. An inspector should raise a materially significant point which has not been addressed by the parties, particularly where it depends on an evidential inference. Failure to do so may cause material prejudice. A front-loading concern is capable of being a relevant planning consideration, but it must be fairly raised, properly evidenced and adequately reasoned.

Edward Ware Homes Ltd challenged, under section 288 of the Town and Country Planning Act 1990, two inspector’s decision letters dated 20 May 2015 dismissing appeals concerning proposed housing development at Midsomer Norton and Paulton. The appeals followed refusals by Bath and North East Somerset Council and had been conjoined.

The inspector accepted that there was a district-wide shortfall in five-year housing land supply, but concluded that the relevant Somer Valley area had more than five years’ supply. He treated the proposed developments as harmful to the spatial strategy because they would divert growth from Bath and front-load housing delivery in the Somer Valley. The central issues were whether those considerations were legally relevant, whether the inspector had complied with procedural fairness, and whether he had applied the NPPF and the statutory development-plan framework correctly.

1. The claims succeeded in part. Grounds 2 and 3 succeeded in both claims. The decision letters concerning the Midsomer Norton and Paulton sites, dated 20 May 2015, were quashed.
2. Paragraphs 14 and 49 of the NPPF operate where the five-year housing land requirement is not met. Paragraph 49 deems relevant housing supply policies out of date in order to engage paragraph 14. It does not prescribe the weight to be given to those policies. The decision-maker may assess whether the justification and objectives of a recently adopted housing distribution policy remain sound, having regard to the nature and causes of the shortfall and the likely means and timescale for addressing it.
3. It is legally permissible to consider housing land supply in sub-areas of a district, even though the formal five-year supply requirement is district-wide or relates to the Housing Market Area. The distribution of supply may be a relevant planning consideration, but its weight is for the decision-maker.
4. The front-loading of housing supply is capable of being a relevant land-use planning consideration. However, the inspector acted unfairly by relying on front-loading without raising it as an issue. The parties had not been given a reasonable opportunity to address its evidential and planning consequences. The inspector also failed to take account of housing already delivered and to assess whether the proposed schemes would materially alter the front-loading shown by the Council’s housing trajectory.
5. The inspector’s alleged “Bath point”—that additional Somer Valley housing would divert development pressure from Bath—was a distinct issue. It had not been raised by the parties or the inspector, was not clearly supported by the Core Strategy, and depended on an evidential inference rather than ineluctable logic. Reliance on it therefore caused procedural unfairness and material prejudice.
6. The inspector sufficiently explained the relationship between the proposals and the development plan for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004. That ground failed. The challenge was not an invitation to reconsider planning merits, and disagreement with the inspector’s judgment did not establish irrationality.

First-instance judicial review claims under section 288 of the Town and Country Planning Act 1990. The court quashed the inspector’s decision letters dated 20 May 2015.