Council holds off on challenging decision by inspector on housing land supply following legal advice

The local authority said it took the decision after receiving legal advice concerning an inspector's decision in May 2024 to allow an appeal from a developer over the determination of an 83-home development.

As part of the decision, the planning inspector concluded that the local authority only had a supply of 4.01 years, which amounted to a shortfall of some 665 homes.

"As such, irrespective of any other issues relating to policy, paragraph 11d of the [National Planning Policy Framework] is activated," the inspector concluded.

Paragraph 11(d) concerns the presumption in favour of sustainable development and provides that:

11. Plans and decisions should apply a presumption in favour of sustainable development.

d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date8, granting permission unless:

1. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed7 ; or
2. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole.

The inspector said that the adverse impacts of the 83-home development in question would "not significantly and demonstrably outweigh the benefits when considered against the Framework as a whole".

"Consequently, the presumption in favour of sustainable development applies and this indicates that permission should be granted."

They added: "In coming to this conclusion, I am mindful of the Council and Rule 6 party's strongly expressed views that to set Policy DS22 and those of the LWNP aside would be an affront to the idea of a 'plan-led' system.

"However, both the legislation and Framework provide a well-worn and understood mechanism for considering conflicts with the development plan which I have followed."

Commenting on the decision last week, a spokesperson for the local authority said: "Whilst the council is disappointed in the inspector's conclusions, the council with the benefit of Counsel advice, decided not to challenge the inspector's decision.

"The council is currently in the process of updating its housing trajectory and 5 year housing land supply position. It is anticipated that will be published within the next month.

"This is very likely to indicate that the council continues to have a housing land supply position of less than 5 years."

Adam Carey