Jelson Ltd v Secretary of State for Communities and Local Government & Anor

In development-control decisions, national planning policy requires a reliable assessment of full objectively assessed housing need, including affordable housing need. It does not prescribe a single method or figure. The assessment is a broad exercise of planning judgment, and a range may lawfully be adopted where supported by the available evidence.

A policy-based calculation of the total development needed to secure affordable housing at current percentage requirements is theoretical. It is not, without more, a measure of full objectively assessed housing need. The court will intervene only where policy or guidance has been misunderstood or misapplied, or another public-law error is shown.

Jelson Ltd proposed 73 dwellings on land outside the settlement boundary at Burbage. The local planning authority refused outline planning permission. An inspector dismissed Jelson’s appeal under section 78 of the Town and Country Planning Act 1990, finding that the authority had a five-year supply of housing land and that the development would harm the surrounding landscape.

Jelson’s challenge under section 288 of the Town and Country Planning Act 1990 was dismissed by Green J: [2016] EWHC 2979 (Admin). It appealed, contending that the inspector had unlawfully assessed full objectively assessed housing need, in particular by rejecting the Strategic Housing Market Assessment figure of 980 dwellings per annum.

The central issue was whether the inspector’s assessment of housing need, including affordable housing need, was lawful.

1. Appeal dismissed. Lord Justice Lindblom, with whom Lord Justice Peter Jackson and Lord Justice Rupert Jackson agreed, held that the inspector had lawfully assessed housing need and that Green J. was right to dismiss the statutory challenge.

2. The court’s function was not to substitute its own planning judgment. National policy in the National Planning Policy Framework and guidance in the Planning Practice Guidance required the inspector to establish a reasonably accurate and reliable figure for full objectively assessed housing need. They did not prescribe an exact methodology for a development-control decision. Housing need is not an exact science. More than one figure, or a range, may lawfully be reasonable if the decision-maker has acted on relevant material and applied policy lawfully.

3. The inspector did not treat the former core-strategy requirement as the relevant assessment of need. She began with demographic projections and the Strategic Housing Market Assessment. She recognised the significant affordable housing need and was entitled to conclude that a 20% uplift from 375 to 450 dwellings per annum adequately reflected affordable housing and economic growth. Although she described the upper figure as policy-on, it was an upward adjustment to avoid understating need, rather than a policy constraint reducing an otherwise assessed need. She also correctly avoided double-counting demographic and affordable-housing figures.

4. The 980-dwelling figure in Table 48 was not an indicator of full objectively assessed need. It was a notional calculation based on the current policy percentage of affordable housing in qualifying schemes. A change in that percentage would alter the figure. The inspector had considered the figure, rationally described it as theoretical, and could use it only as a possible prompt for future policy adjustment.

5. The inspector was not obliged to undertake the full local-plan exercise of identifying an alternative housing requirement. It was sufficient to reach a sound assessment for deciding whether a five-year supply existed. Her use of the appellant’s 539-dwelling calculation as a cross-check on the robustness of her conclusion was lawful. Her reasons were coherent, adequate and within the bounds of reasonable planning judgment.

• Court of Appeal (Civil Division): dismissed Jelson Ltd’s appeal and affirmed the dismissal of its statutory challenge: [2018] EWCA Civ 24.

• High Court, Planning Court: Green J. dismissed Jelson Ltd’s application under section 288 of the Town and Country Planning Act 1990: [2016] EWHC 2979 (Admin).

• Planning Inspector: dismissed the section 78 appeal against the refusal of outline planning permission.