Cotswold Case on the Definition of Persistent Underdelivery

Planning Resource  here is the Balli ref.  The only thing I would add is that in the ‘other case’ referred to the Inspector used a method of calculating the 5 year supply that was found unlawful in the Hatcham/St Albans case – which itself goes to JR this week.  So as many predicted the vagueness of the NPPF is leading to endless JR’s

Cotswold District Council took the case to court after its decisions to reject two housing proposals at Tetbury in Gloucestershire were overturned on appeal by the government in February.

Councillors were upset that the 289 houses are planned for Highfield Farm and Berrells Road, both in areas protected for their natural beauty.

But after hearing the local authority’s challenge to the decisions, a High Court judge yesterday effectively gave the schemes the go-ahead.

Mr Justice Lewis said the decisions on appeal to reverse the council’s refusal of outline planning permission in the two cases were “lawful”.

The court heard that the Regional Spatial Strategy for the South West had pinpointed a need for 2,022 houses in the area over the next five years.

But the planning inspector considered the council had persistently failed to deliver enough houses and added a 20 per cent buffer, making a total of 2,426.

And, because the council was only able to show it had enough land available for 1,711 over the next five years, that left a “very serious shortfall”.

Due to that shortfall, the policy restricting housing outside existing development boundaries had to be considered out of date, the inspector found.

And due to a “severe” shortfall in housing in the council’s area, the developments were in the public interest.

Lawyers for the council argued at the High Court that the inspector had misconstrued the meaning of “persistent under delivery of housing”.

The secretary of state, Eric Pickles, in allowing the appeals on the inspector’s recommendation, had also failed to take into account an important consideration.

The council argued that, in another case in the Cotswolds, a planning inspector had not added the 20 per cent buffer on the grounds he was not convinced there was a persistent record of under-delivery.

But giving judgment, Mr Justice Lewis said that, whichever way it was looked at, there had been under-delivery of housing land which could be characterised as “persistent”.

And since the decision on the other case had not been drawn to the secretary of state’s attention, he did not need to take it into account.

“The decisions of the secretary of state in the Highfield and the Berrells Road appeals are lawful,” the judge continued.

“The inspector, and hence the secretary of state who adopted her reasoning, correctly interpreted the relevant policy and reached conclusions that were open on the material available.

“The secretary of state did not fail to have regard to a material consideration.”

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