Developer wins court case over refusal of planning permission by minister against inspector recommendation

The High Court has quashed a decision by the Secretary of State for Housing, Communities and Local Government that had overturned an inspector’s recommendation to allow a large residential development in Milton Keynes.

Developer Wavendon Properties brought the case against the Secretary of State and Milton Keynes Council.

Wavendon in 2016 applied to build 203 homes and Milton Keynes rejected this despite officers’ advice to grant permission.

In Wavendon Properties Ltdv Secretary of State of Housing Communities And Local Government & Anor [2019] EWHC 1524 Dove J said the refusal was made because the proposal “would result in the loss of future development and infrastructure options, causing significant and demonstrable harm and is therefore not sustainable development” and would also be contrary to parts of the National Planning Policy Framework and some council policies.

Wavendon appealed and an inquiry was held in July 2017 at which Milton Keynes said it could demonstrate a 5.2 years supply of sites for housing but which the developer said amounted to only three years’ worth.

The inspector concluded the council was wrong and that planning permission should be granted, but the Secretary of State accepted the council’s case and overruled this.

Wavendon appealed successfully to the High Court on the grounds that the Secretary of State’s conclusion on housing land supply failed to correctly interpret the definition of ‘deliverable’ for sites, and failed to identify any findings on deliverability in relation to a specific sites review analysis.

It argued that the Secretary of State “signally failed to correctly interpret the policy and identify any findings in respect of deliverability” and alternatively, that the finding in relation to housing land supply stood at 10,000-10,500 dwellings “is entirely unexplained”.

Dove J said: “I am satisfied that the claimant must succeed under [these] grounds, in particular in relation to the inadequacy of the [Secretary of State’s] reasons.”

He said the Secretary of State had evidence before him that a five-year housing land supply could not be demonstrated and was “therefore, for the first time in the decision-taking process concluding that a five year housing land supply was available to [Milton Keynes]”.

This decision was open to him, but since it involved a figure for housing land supply that “had not featured anywhere in the material presented to him by either of the main parties or the inspector, it called for explanation”.

Despite the inspector having concluded that Milton Keynes did not have a five-year land supply the Secretary of State “by clear contrast, arrived at a specific and entirely new figure purporting to have taken account of the inspector's conclusion on these issues”.

Dove J said: “All of these factors lead me to the conclusion that the reasons provided by the [Secretary of State] in relation to the figure were not adequate in the particular and perhaps unusual circumstances of this case.

“By simply asserting the figures as his conclusion, [he] has failed to provide any explanation as to what he has done with the materials before him in order to arrive at that conclusion, bearing in mind that it would have been self-evident that it was a contentious conclusion.”

Three other grounds of appeal were rejected.

Mark Smulian