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Council loses High Court battle over taking into account of past over-supply of housing

The National Planning Policy Framework (NPPF) is silent on whether an earlier oversupply of housing can affect a council’s future five-years land supply for homes.

That conclusion came from Mr Justice Dove in the High Court in a case concerning Tewkesbury Borough Council and developers JJ Gallagher and Richard Cook.

They had applied unsuccessfully to Tewkesbury to build 50 homes on a site in Gotherington, but the council’s decision was overturned on appeal by an inspector.

Tewkesbury argued that it could demonstrate a housing land supply of 4.37 years if the oversupply from previous years within the plan period was taken into account.

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The developers argued removal of the oversupply would reduce the five-year housing land supply to 2.4 years and there were disputed sites included in the housing supply, the removal of which would reduce it to 1.84 years.

Tewkesbury argued that the NPPF did not explicitly address how past housing oversupply should be taken into account, and the correct interpretation was that it should be when assessing of the available five year housing land supply.

It said the planning objective was to deliver sufficient homes to meet assessed needs across the whole of the plan period rather than annualised figures.

If oversupply against the annualised housing requirement was not taken into account, then the five-year supply would not be being calculated against the housing requirement but instead against an arbitrary figure which would change from year to year, the council said.

The inspector therefore misinterpreted the policy by omitting the previous over supply from consideration, it said.

For the inspector, the Secretary of State for Housing Communities and Local Government said the NPPF was silent on previous oversupply and so there was no policy to be interpreted, and it was not the court’s role to fill gaps.

In Tewkesbury Borough Council v Secretary of State for Housing Communities And Local Government [2021] EWHC 2782 (Admin) Dove J said he was “unable to accept the primary submission” by Tewkesbury that the NPPF required previous oversupply prior to be taken into account.

He said: “The text of the framework does not include any such suggestion. The claimant's argument depends upon this conclusion being a necessary inference from the way in which the framework has been drafted. It is not an inference which, in my judgment, can properly be drawn.”

The judge concluded: “In the absence of any specific provision within the framework there is no text falling for interpretation, and it is not the task of the court to seek to fill in gaps in the policy of the framework.

“When it arises that there is no policy covering the situation under consideration then it calls for the exercise of planning judgment by the decision-maker to make the necessary assessment of the issue to determine the weight to be placed within the planning balance in respect of it.”

Mark Smulian

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