Gladman Development Ltd v Secretary of State of Housing Communities And Local Government & Anor

In a planning appeal involving housing land supply, an Inspector will generally need to reach a conclusion on whether a five-year supply exists and, if there is a shortfall, assess its broad magnitude. Exact arithmetic is not always required. A conclusion may be unnecessary where calculation is impossible or where, even assuming the greatest shortfall contended for, the proposal would plainly fail the planning balance. A shortfall may affect both the weight given to additional housing and the weight given to conflict with policies restricting development. Applying the tilted balance for another reason does not remove the need to assess those consequences. Failure to do so is an error of law.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s refusal of planning permission for up to 140 dwellings outside a defined settlement boundary. Archaeology, flooding and highway matters had been resolved, leaving housing location and the application of national planning policy as the central issues.

The Inspector applied the tilted balance because a countryside policy was out of date, but declined to reach a firm conclusion on the authority’s five-year housing land supply. The claimant alleged that this failed to address a material consideration and also challenged the approach to the applicable buffer. The court dealt with the first ground and considered the second unnecessary.

1. Challenge under section 288. The court’s jurisdiction was confined to errors of law and did not permit a reconsideration of planning merits. The decision had to be read as a practical exercise in decision-taking, without excessive forensic scrutiny. The interpretation of planning policy was a matter of law, while its application involved planning judgment.
2. Five-year housing land supply. Paragraphs 47, 49 and 14 of the Framework require an Inspector generally to make a judgment on housing need and supply where the issue is material. The Inspector need not undertake the detailed analysis appropriate to a development plan examination and may use a range or broad magnitude rather than an exact figure. However, where a shortfall exists, its approximate extent will ordinarily be needed because it affects the weight given to the housing benefit and to conflict with relevant policies.
3. There may be exceptional cases where no conclusion is required. These include cases where critical data is missing or the exercise would be hopelessly speculative, and cases where permission would be refused even on the assumption of the greatest shortfall advanced by the appellant. Any departure requires cogent and clearly justifiable reasons.
4. The Inspector’s reasons were inadequate. The disagreement between the parties, the concurrent local plan examination and the application of the tilted balance did not justify declining to assess the supply. The Inspector had already evaluated much of the evidence and could have reached a conclusion on the basis available. His failure left out of account the effect of any shortfall on material components of the planning balance.
5. The decision was quashed and remitted for redetermination. Ground 2, concerning the five per cent or 20 per cent buffer, was not considered.

This was a first-instance claim under section 288 of the Town and Country Planning Act 1990 challenging an Inspector’s decision refusing planning permission. The court quashed the decision and remitted the matter for redetermination.