In July 2015, Inspector Kevin Ward allowed an appeal for 90 houses on land at the edge of the village of Burghfield Common in West Berkshire. He found the Council could not demonstrate a five year supply of housing land. In so doing he rejected the annual housing requirement in the Core Strategy (525 dpa), concluding that it was not compliant with the NPPF. It was in fact the old RS figure which Simon Emerson, the Core Strategy (CS) Inspector, had (i) felt obliged to accept because at the time there was still a statutory requirement for general conformity with the RS; and (ii) after two suspensions of the EIP already, it was on balance better for the Council to have a plan than not, especially so that a large urban extension could come forward. 

In March 2015, the Council won an appeal before another Inspector who accepted its reliance on the CS figure and rejected the OAN figure put forward by the consultants in that case. Inspector Ward however, concluded that the CS figure of 525 dpa was inappropriate because (i) the figure was badly out of date, (ii) not an OAN figure; and (iii) the Council had not yet published an up-to-date NPPF compliant SHMA.  Crucially, he was presented with an alternative OAN figure by the Appellant’s planning consultants, which relied on the latest population and household data and applied an economic growth rate (0.6%). This resulted in an annual housing requirement of 833 dpa. The Inspector concluded this was a “reasonable approach”. 

The decision was challenged by the Council in the High Court who argued the Inspector was (i) wrong to depart from the figure in the recently adopted CS; and (ii) wrong to adopt a developer-led OAN figure. But the High Court rejected the challenge on both grounds in West Berkshire v SSCLG and HDD [2016] EWHC 267.

On the first ground Mr Justice Supperstone found the Inspector had correctly applied Section 38(6) TCPA 1990 and was entitled to reject the figure in the adopted CS because of other material considerations, namely (i) the CS Inspector Mr Emerson had made clear it was not an OAN figure; and (ii) the Appellant was able to show “significant new evidence” had come to light in line with PPG 03-030 in the form of the latest population, household and economic data. On ground two, the Court held that the Inspector was required by Section 70(2) TCPA to have regard to the Appellant’s evidence on OAN and was thereafter entitled to find, as he did, that the Appellant’s OAN evidence produced specifically in relation to the appeal was “a reasonable approach”. The Council is not seeking permission to appeal. 

Christopher Young is a barrister at No5 Chambers and acted for the developer in the planning appeal and in the High Court.