Council wins appeal over application by planning inspector of 10% 'lapse rate'

A planning inspector unlawfully imposed a 10% ‘lapse rate’ when he considered an application in Wokingham, the High Court has ruled.

Mr John Howell QC, sitting as a Deputy High Court Judge, upheld Wokingham Borough Council’s appeal against the Secretary of State for Communities and Local Government – who ceased to oppose the appeal - and developer Cooper Estates Strategic Land.

Inspector GD Jones granted a conditional outline planning permission for Cooper to build up to 57 new homes at Spencers Wood, near Reading, after he decided Wokingham had not demonstrated a five-year supply of deliverable housing sites.

The council objected both to the 20% ‘buffer’ he added to the requirement for housing sites and the 10% ‘lapse rate’.

This term was used to represent “the proportion of the number of dwellings in the supply of specific deliverable sites that will not be provided within the five-year period”, the judgment said.

“It may be applied whether or not any site to which the rate is applied has permission and whether or not the reason why the dwellings are not provided on it is that planning permission for its development has lapsed.“

Wokingham argued that Mr Jones had unlawfully imposed both the lapse rate and buffer and that he made two objectively verifiable errors of fact when considering whether or not there was a five year supply of land.

In Wokingham Borough Council v Secretary of State for Communities and Local Government & Anor [2017] EWHC 1863 Judge Howell ruled: “The inspector unfairly applied a 10% ‘lapse rate’ to the estimated supply of deliverable housing sites in Wokingham when he had not been invited to do so without first giving the council an opportunity to address evidence and/or submissions to him.

“In any event the inspector's use of a 10% ‘lapse rate’ applied to whole of the estimated supply for the reasons he gave was unlawful...he failed to give reasons explaining why he rejected the council's case that the application of a ‘lapse rate’ to the whole of the supply for that reason was unwarranted given the application of a 20% buffer for the same reason.

“Had the council been given the opportunity it could also have produced arguments why the other three reasons that he relied on did not justify [the lapse rate].”

He said Wokingham “suffered material prejudice as a result of the manner in which the inspector dealt, unfairly in my judgment, with the application of a 10% ‘lapse rate’.”

Mark Smulian