Shortfall in supply

November 27th, 2017

Paragraph 49 of the National Planning Policy Framework states that housing applications should be considered in the context of the (paragraph 14) presumption in favour of sustainable development and that policies for housing supply should not be regarded as up to date if the Local Planning Authority is unable to demonstrate a five-year supply.

In Hallam Land Management Ltd v SoS for CLG and Eastleigh Borough Council (2017) EWHC 2865 (Admin) Supperstone J ruled (paragraphs 22/23) that where there is a shortfall the SoS is not required in every case to determine the precise extent of the shortfall.  The key question is whether the housing land supply is above or below five years.

Another issue in the case was whether the SoS had failed to have regard to a material consideration and/or had not complied with the principle of consistency by not acquainting himself with the findings in an Inspector’s Report in another case.  Supperstone J ruled that:-

(1) The principle of consistency in decision making has no application to Inspectors’ reports which are not decisions: paragraph 33;

(2) The SoS does not have imputed knowledge of an undecided Inspector’s Report or of everything submitted to or produced by his Department: paragraph 35;

(3) Even if the SoS were to have had such imputed knowledge, the Claimant would have to establish that the other report was a matter that no reasonable decision maker should have failed to take into account in the circumstances: paragraph 36;

(4) There was no basis for the contention that it would be irrational not to take into account an unpublished Inspector’s report in separate inquiry proceedings relying on different evidence: paragraph 38; and

(5) It was for the SoS to decide how far to go in obtaining information relating to the Council’s land supply (whether in other Inspectors’ reports, or elsewhere): ibid.

Supperstone J quoted with approval Holgate J in R (Plant) v Lambeth LBC 2017 PTSR 453:

“62.  …although, it is for the Court to determine whether a consideration is legally capable of being relevant, the general principle is that it is for the decision-maker, in this case LLBC, to decide (a) whether to take a relevant consideration into account and, if it does so decide, (b) how far to go in obtaining information relating to that matter. Such decisions may only be challenged on the grounds that it was irrational for the authority not to take a legally relevant consideration into account or, having done so, not to obtain particular information …

63. The test is whether, in the circumstances of the case, no reasonable authority would have failed to take into account the specific consideration relied upon by the Claimant, or to obtain further information. Lord Scarman held in In Re Findlay that this test is satisfied where, in the circumstances, a matter is so ‘obviously material’ to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation, ‘notwithstanding the silence of the statute’…”

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