A recent High Court decision confirms that Tewkesbury Borough Council cannot demonstrate a deliverable five year housing land supply.
The High Court challenge relates to an earlier planning appeal decision for the provision of 40 new homes in Highnam (see Evans Jones article.
Tewkesbury Borough Council (TBC) were aggrieved by the Secretary of State’s decision in so far as both the appointed inspector and the Secretary of State concluded that Tewkesbury Borough Council’s housing land supply at the time of the enquiry (2018) equated to some 3.66 years. Interestingly, both the appointed inspector and Secretary of State incorrectly calculated the supply figure at 3.99 years, Tewkesbury Borough Council have agreed with Evans Jones that the correct arithmetic equates to 3.66 years.
In response to the appeal, TBC took the unusual step of challenging the decision, in this case not seeking to have the Secretary of State’s decision overturned, but simply seeking a statement from the court that the inspector and Secretary of State had erred in law and had improperly ignored the previous oversupply of housing within the housing supply calculation.
On 8 July Mr Justice Dove published his judgement (following a hearing on 3rd May 2019) dismissing TBC’s challenge. In the intervening period between 3rd May and 8th July, the Council had already acknowledged that they were unable to demonstrate a deliverable five year supply of housing land. The effect of the High Court decision will be to further reduce deliverable supply. We calculate that supply now stands at below three years.
The implications for the planning authority is that applications for housing must now be considered against paragraph 11 d) of the National Planning Policy Framework 2019, the presumption in favour of granting permission is triggered. In addition, with a supply potentially below three years this presumption will also apply in cases where a neighbourhood plan contains policies which would normally restrict residential development.
Tewkesbury Borough Council are in the process of producing a new local plan. This High Court decision, however, is likely to delay the plan and additional sites will undoubtedly now need to be found to deliver much needed homes in the right locations.
TBC’s decision to challenge the Highnam decision was somewhat surprising, even if the challenge had been successful, the local authority would still not have been able to demonstrate a deliverable supply of housing land and thus one must question whether the cost incurred in challenging the decision were in the public interest or best served the taxpayers' interests. A question particularly pertinent where the presiding judge concluded that the challenge was not answerable.
In Justice Dove's adjudication he confirms “I am not satisfied that it is appropriate in this case for the court to exercise its jurisdiction to adjudicate upon an academic dispute in a judicial review claim” .
David Jones; Head of Planning and Managing Director at Evans Jones comments: “ever since first publication of the National framework in 2012 local authorities housing land supply is taken up many days of Inquiry time in seeking to agree between appellant and local authority the actual deliverable supply. Subsequent updates to the framework in 2018 and 19 sought to simplify the process. This High Court challenge however indicates that the ping-pong of challenge between authority and appellant is likely to continue. Personally I do not consider it was appropriate for TBC to challenge this particular decision. The challenge served no useful purpose for the local authority and in my opinion was a challenge doomed to failure from the outset. National policy encourages local authorities to significantly boost the supply of homes (NPPF Para 59). In this case authority by their own calculation only marginally exceeded five year supply, thus seeking to challenge the Secretary of State’s decision from the onset run contrary to the government’s objective of seeking to significantly boost the supply of homes”
To discuss the implications for your proposals please contact David Jones.