Shropshire Council v Secretary of State for Communities and Local Government & Anor

On a housing appeal, an Inspector must make a judgment, on the evidence available, about the current full objectively assessed need for housing or housing requirement and the supply of housing. An outdated Local Plan or uncertain evidence does not ordinarily remove that obligation. The Inspector need not conduct the detailed exercise appropriate to plan-making and does not bind the local planning authority for later decisions. If a precise figure cannot be identified, a bracket or approximate figure may suffice. The extent of any housing-supply shortfall may be material to the balancing exercise under paragraph 14 of the NPPF. A decision that treats the absence of a reliable figure as ending the inquiry, without making the best judgment possible or explaining why that is impossible, is unlawful.

The Council challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s decision allowing an appeal and granting conditional permission for 68 dwellings in Shropshire. The Council had refused permission because the benefits were outweighed by harm to open countryside and conflict with the development plan.

The Inspector concluded that the Council’s housing requirement was out of date, that it had no reliable full objectively assessed need for housing, and therefore that it could not demonstrate a five-year housing-land supply. The Secretary of State conceded that the decision should be quashed. The interested-party trustees resisted the claim. The central issues were whether the Inspector had to determine housing need and supply on the evidence before him and whether the housing-supply shortfall was relevant to the paragraph 14 balance.

1. The claim was allowed. The Inspector’s decision was quashed because he failed to complete the legal task required by paragraphs 47, 49 and 14 of the NPPF.
2. In a housing appeal, housing need and housing supply are generally material considerations. The Inspector must make his own judgment about the current full objectively assessed need or housing requirement and the supply, using the evidence before him. This follows Stratford on Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin), South Northamptonshire Council v Secretary of State for Communities and Local Government [2014] EWHC 573 (Admin), West Berkshire District Council v Secretary of State for Communities and Local Government [2016] EWHC 267 (Admin) and R (Gladman) v Secretary of State for Communities and Local Government [2016] EWHC 683 (Admin).
3. The exercise is case-specific and need not replicate the detailed, technical analysis suitable for a Development Plan inquiry. The Inspector may make the best of imperfect or competing evidence and is not determining an authoritative figure that binds the local planning authority in other cases. The exceptional possibility identified in Dartford Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 649 (Admin) did not apply because substantial material was available.
4. The Inspector could not treat the absence of a reliable existing figure as creating a vacuum. He had to assess the material, including other available sources identified by paragraph 30 of the PPG. If unable to identify a precise figure, he could use a bracket or approximate uplift. If genuinely unable to make the required judgments, he had to give adequate reasons explaining why.
5. The extent of the shortfall may be relevant to the paragraph 14 balancing exercise, as recognised in Cheshire East Borough Council v Richborough Estates Partnership LLP [2016] EWCA Civ 168. The failure was potentially critical to the outcome, so the Court declined to exercise its discretion not to quash. The application to quash was granted.

The judgment records that permission to bring the section 288 claim was granted on the papers by Ouseley J. on 14 July 2016. The Secretary of State then conceded that the decision ought to be quashed. This Court granted the claim and quashed the Inspector’s decision.