Swale Borough Council v Secretary of State for Housing Communities And Local Government & Ors

When assessing a shortfall in the supply of deliverable sites, a decision-maker need not invariably calculate the precise numerical deficiency. The necessary level of specificity depends on the material before the decision-maker and the variation disclosed by that material. A broad assessment will normally be sufficient if it permits the weight of the shortfall to be judged. Where other material points to a materially different assessment, reasons may need to explain the inconsistency. Under paragraph 27 of the Planning Policy for Traveller Sites, an inability to demonstrate a five-year supply is itself a significant material consideration in deciding whether to grant temporary permission.

The Council brought a statutory review under section 288 of the Town and Country Planning Act 1990 and an appeal under section 289 against an inspector’s decision. The inspector granted temporary planning permission for eight travellers’ pitches and an access road, after finding a substantial shortfall in the supply of deliverable travellers’ sites. The Council argued that the inspector had erred in law by failing to quantify the five-year shortfall. The central issue was whether the principles stated in Hallam Land Management Ltd v Secretary of State for Communities and Local Government and Eastleigh Borough Council, [2018] EWCA Civ 1808, required a more precise assessment under the Planning Policy for Traveller Sites.

1. The claims were dismissed. The inspector had not erred in law by describing the shortfall as substantial without stating the precise result of the usual calculation.
2. Hallam Land Management Ltd v Secretary of State for Communities and Local Government and Eastleigh Borough Council, [2018] EWCA Civ 1808, did not establish an inflexible requirement for exact quantification. The level of specificity required depends on the material presented and the degree of variation shown by it. A decision-maker must normally assess at least the broad magnitude of a shortfall where that is necessary to judge the weight it should receive.
3. The Planning Policy for Traveller Sites differs materially from the 2012 National Planning Policy Framework. Paragraph 27 treats the absence of an up-to-date five-year supply as a significant material consideration in the general planning balance. It does not trigger a separate tilted balance or create a presumption in favour of permission. Its specific reference to temporary permission also indicates that a shortfall may be addressed through a temporary grant while the local planning authority works to improve supply.
4. Those differences meant that the principles in Hallam could not be applied automatically or in their entirety. They nevertheless remained relevant where a decision-maker had to balance competing considerations, particularly if the weight assigned to the shortfall was difficult to reconcile with the evidence.
5. On the evidence before the inspector, 19 of the 56 required pitches were unavailable for supply purposes. That was plainly capable of being characterised as a substantial shortfall. No further explanation or precise calculation was required, especially since no conflicting material was identified which required engagement or reconciliation. The decision was therefore lawful.

The inspector’s decision dated 15 December 2017 granted temporary planning permission on the enforcement appeals. The Council then brought statutory review and statutory appeal proceedings. The High Court dismissed the challenge.