Hallam Land Management Ltd v Secretary of State for Communities And Local Government & Anor

Where a five-year housing land supply has not been demonstrated, the planning decision-maker will normally have to identify at least the broad magnitude of the shortfall. Exact quantification is unnecessary unless the circumstances require it. The assessment must be sufficient to inform the weight given to housing benefits and restrictive development-plan policies.

Recent decisions assessing the same housing supply may be material considerations. If they conflict materially with the proposed conclusion, intelligible and adequate reasons must explain the difference. The principle of consistency applies between planning decisions. It does not extend to an unpublished inspector’s report on which the Secretary of State has yet to decide.

Hallam Land Management Ltd sought outline planning permission for housing, care accommodation and associated works on countryside land within a local gap. The council refused permission. Following a recovered appeal under section 78 of the Town and Country Planning Act 1990, the Secretary of State accepted that no five-year housing land supply existed but dismissed the appeal.

Hallam Land challenged that decision under section 288 of the Town and Country Planning Act 1990. Supperstone J dismissed the application in [2017] EWHC 2865 (Admin). The company appealed.

The principal issues were whether the Secretary of State had assessed the housing-land shortfall with sufficient precision and given adequate reasons, and whether he should have considered an unpublished inspector’s report concerning the later Boorley Green appeal.

1. Appeal allowed on the first issue. The Secretary of State’s decision was liable to be quashed because his reasons did not adequately address the magnitude of the housing-land shortfall or the materially different conclusions in the recent Bubb Lane and Botley Road appeal decisions. Lindblom LJ gave the leading judgment. Hickinbottom and Davis LJJ agreed.

2. The first National Planning Policy Framework did not invariably require exact calculation of a shortfall against the five-year housing-land supply. The required precision was a matter of planning judgment. Ordinarily, however, a decision-maker had to gauge at least the broad magnitude of the shortfall. That assessment informed the weight given both to housing benefits and to restrictive development-plan policies impeding supply.

3. The Secretary of State could lawfully have used an approximate figure or range. His references to the council’s asserted 4.86-year supply did not, however, show unequivocally that he had adopted that figure. More importantly, he described the shortfall as “limited” without engaging with two recent decisions that had found a supply of about four years or 4.25 years and had characterised the shortfall as significant.

4. Those recent decisions were material both as current independent assessments of supply and under the principle of consistency in planning decision-making. The scale of the shortfall also affected the weight given to the local-gap policy and was potentially decisive in the planning balance. The absence of intelligible and adequate reasons caused substantial prejudice. The court could not assume that the outcome would inevitably have been the same.

5. The second issue was rejected. Consistency is a principle of good planning practice applying between decisions. It does not apply to an unpublished inspector’s report awaiting the Secretary of State’s decision. Such a report is advice and an intermediate stage, not a decision or part of one unless and until its reasoning is adopted.

1. Court of Appeal (Civil Division): The appeal was allowed on the housing-land-supply and reasons issue. The challenge concerning the unpublished inspector’s report was rejected: [2018] EWCA Civ 1808.
2. Administrative Court, Planning Court: Supperstone J dismissed Hallam Land’s application under section 288 of the Town and Country Planning Act 1990: [2017] EWHC 2865 (Admin).
3. Secretary of State: The recovered section 78 appeal against the council’s refusal of outline planning permission was dismissed by decision letter dated 9 November 2016.