West Berkshire District Council v Secretary of State for Communities And Local Government & Anor

In a challenge under Town and Country Planning Act 1990, section 288, the court reviews legality rather than the planning merits. An inspector may depart from an adopted housing requirement where material evidence shows that it no longer provides an appropriate basis for assessing five-year housing supply. In an individual appeal, the inspector may make an evidence-based assessment of housing need for that appeal without determining or binding the figure for the development plan. The weight given to policies, including out-of-date housing policies and emerging plan documents, is ordinarily a matter of planning judgment. The inspector must nevertheless address the principal controversial issues, apply the relevant policy tests and give clear and adequate reasons.

The Council challenged, under section 288 of the Town and Country Planning Act 1990, an Inspector’s decision allowing an appeal against refusal of permission for up to 90 dwellings at Firlands Farm, Burghfield Common. The Inspector treated the adopted housing requirement as out of date, assessed an annual requirement of 833 dwellings for the purposes of the appeal, found no five-year supply, gave limited weight to the emerging housing allocations document and applied the presumption in favour of sustainable development.

The Council argued that the Inspector had misunderstood the Core Strategy, used an unsound housing-need figure, failed to assess weight and the planning balance, and gave inadequate reasons. The central issues were whether those conclusions involved errors of law or irrationality.

1. The claim was dismissed. The Inspector’s decision was legally valid and the court would not revisit its planning merits.
2. The Inspector was entitled to conclude that the Core Strategy’s annual housing figure no longer provided an appropriate basis for calculating five-year housing supply. The figure was not based on an objectively assessed need, the relevant evidence was out of date, no compliant Strategic Housing Market Assessment had yet been produced, and significant new evidence was available. Those material considerations justified departure from the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004.
3. In a section 78 appeal, an inspector may assess housing need for the purpose of deciding the individual appeal. That assessment does not bind the local planning authority, another inspector or the Secretary of State in later plan-making or appeals. The Inspector was therefore entitled to use the evidence produced for this appeal and select 833 dwellings per annum as an appropriate basis for calculating five-year supply.
4. The challenge to the migration evidence amounted to an attempt to re-argue the merits. No material error of fact satisfying the test in E v Secretary of State for the Home Department [2004] QB 1044 was established.
5. The Inspector addressed the matters required by paragraph 216 of the NPPF. He was entitled to give little weight to the emerging allocations document, which had attracted substantial objections and had not been independently examined, and to the substantially outdated settlement-boundary policy. Differences from the Mans Hill appeal were adequately explained by differences in the proposals and in the Inspector’s assessment of housing supply.
6. The reasons were clear and adequate on the principal important controversial issues, applying the approach in South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953.