Interpretation of national policy and standard of reasons in planning decisions


East Riding of Yorkshire Council  v Secretary of State for Levelling Up, Housing and Communities & Anor [2021] EWHC 3271 (Admin) (02 December 2021)

Sarah acted for the successful Secretary of State in two conjoined statutory challenges brought by East Riding Council to a planning inspector’s decisions to grant planning permission for two major residential schemes. The cases raise provide guidance on calculating housing land supply and the standard of reasons in planning decisions.

At the heart of both decisions was the inspector’s treatment of the five year housing land supply and her interpretation of paragraph 73 of the National Planning Policy Framework. It was common ground between the Council and the developer that at the time of the appeals, using its housing requirement, the Council could not show a 5 year supply. However, since the Local Plan was nearly 5 years old, that housing requirement was imminently about to change. By dint of paragraph 73 and footnote 37 of the NPPF, the housing requirement would, after 5 years (which was only weeks away), need to be calculated using the standard method. Calculated on the standard method, the Council could show more than 5 years housing land supply.

On that basis, the Council advocated using a “hybrid approach” to calculating the 5 year housing land supply using a combination of the Local Plan housing requirement and the standard method figure. The Council referred the inspector to two appeal decisions in which other inspectors had declined to apply a Local Plan housing requirement where there was an alternative requirement in an emerging plan.

The inspector rejected the Council’s argument. She held that para. 73 gave a clear 5 year time period for using the Local Plan figure and that the two calculation methods were binary alternatives. Calculations should be either on based on the housing requirements or the standard method. There was no good reason for applying an alternative calculation when the whole point of para. 73 was to provide transparency and certainty for all stakeholders.

Dismissing the claim, the court held that the inspector had provided an adequate and accurate summary of the other appeal decisions and had explained why they were materially different to the appeals before her. Dove J concluded that it was neither irrational nor a misunderstanding of paras. 73 and 48 of the NPPF for the Inspector to conclude that there was a fundamental difference between the imminent adoption of a local plan housing requirement which had been found sound and the imminent use of a local housing need figure derived from the standard method.

Sarah Sackman acted for the successful Secretary of State instructed by the Government Legal Department.