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

An inspector determining a planning appeal must give participants a fair opportunity to address a material adjustment that the inspector proposes to make, particularly in a focused inquiry where no party has advanced that adjustment. A uniform deduction from estimated housing supply must be supported by reasons explaining its relationship with any additional housing requirement buffer and with the evidence relied upon. A 20% buffer and a so-called lapse rate may address different matters, but their combined use requires justification and must not involve unexplained double counting. Material procedural unfairness, inadequate reasoning or material factual error may justify quashing the decision.

Wokingham Borough Council applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing a section 78 appeal by Cooper Estates Strategic Land Ltd. The inspector granted outline permission for up to 57 homes and concluded that the Council lacked a five-year supply of deliverable housing sites.

The Council challenged the inspector’s use of a 10% lapse rate, alleged factual errors concerning housing sites and developer responses, and his treatment of two development plan policies as out of date. The central issues were whether the lapse rate was procedurally fair and adequately reasoned, whether the alleged factual errors were material, and whether any errors were rendered irrelevant by the application of the NPPF’s tilted balance.

1. Claim allowed and decision quashed. The inspector’s application of a uniform 10% lapse rate to the estimated housing supply was procedurally unfair and unlawful. Neither party had contended that a lapse rate should be applied. The Council could not reasonably have anticipated that the inspector would impose one without indicating that the issue required evidence or submissions.
2. The inquiry process combines inquisitorial and adversarial features. Applying the principles in Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 470, fairness required knowledge of the issue before the decision-maker and a reasonable opportunity to adduce evidence and make submissions. The principles in Castleford Homes v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 77 and R (Poole) v Secretary of State for Communities and Local Government [2008] EWHC 676 (Admin) reinforced that conclusion.
3. Even if the inspector could have considered a lapse rate limited to sites not specifically examined, he applied it to the whole supply and relied on reasons beyond those discussed at the inquiry. He failed to explain why a deduction for the Council’s history of over-predicting delivery was justified when a 20% buffer had also been applied for persistent under-delivery and to provide a realistic prospect of achieving planned supply. The reasoning also did not explain how the other grounds relied upon justified a deduction across the whole supply. This was inconsistent with the reasoning applied in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin).
4. The inspector’s view that only three developer responses had been received was a material error of fact. The evidence showed that 13 responses had been received. The error reinforced the unlawfulness because the lapse rate was decisive to whether a five-year supply existed. The inspector was entitled to conclude that only one developer was likely to be involved at Hatch Farm Dairies, since that conclusion was supported by unchallenged evidence.
5. The possible applicability of the tilted balance did not make the errors irrelevant. The extent of any housing shortfall remained legally relevant. The court granted permission to raise the additional ground concerning Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37, but rejected it on the merits because the inspector’s classification of the location policies did not affect the basis of his balancing exercise.

This was a first-instance application under section 288 of the Town and Country Planning Act 1990. The judgment itself does not state any further appellate history.