Killian Garvey, instructed by JJ Gallaghers Limited and L&Q Estates, was successful in the High Court in defending the grant of planning permission.

On 12 January 2021, Inspector McDonald granted outline planning permission for 50 dwellings in Gotherington, Tewkesbury. This followed from a four day planning inquiry, where Killian acted for the Appellant.

One of the key issues between the parties at the appeal was the extent of Tewkesbury Borough Council’s housing land supply shortfall. The Appellant argued that the Council’s supply was 1.84 years, whereas the Council claimed a supply of 4.37 years. The central dispute on housing supply revolved around how to deal with the Council’s ‘oversupply’.

The Council had over delivered against their housing requirement in previous years of the plan period. The Council argued that this oversupply should be credited towards their future supply, such that it should mean that their future housing requirement should be lowered. Inspector McDonald rejected this argument and sided with the Appellant, finding that this was contrary to the ambition of significantly boosting the supply of housing. This led to the Council challenging the Inspector’s determination on this point.

The backdrop to this case is interesting for 2 reasons.

The first reason is that this is the second time where Tewkesbury Borough Council had brought a legal challenge in respect to this issue. In 2018 the Council brought another challenge on this same exact issue. Interestingly, this earlier legal challenge also came before Mr Justice Dove. However, the Court dismissed the claim on that occasion, on the basis that the subject matter was academic. The Council had won that appeal and therefore the Court found that the Council did not have proper standing for bringing a legal challenge to a decision that ultimately they won.

The second reason is that the appeal before Inspector McDonald was the second occasion where an appeal had taken place in respect to the appeal site over the last few years. Back in 2018, Inspector Ware had dismissed an appeal in respect to the site – finding that the Council had a 5 year housing land supply.

Against that backdrop, Tewkesbury argued on this occasion that Inspector McDonald was required as a matter of policy to have regard for oversupply in the manner they sought. Mr Justice Dove rejected this contention.

Mr Justice Dove held that there was nothing in national policy, either explicitly or implicitly, that required the Inspector to have regard for oversupply. The Court found that it was not the role of the Court to fill gaps in national policy and that, where those gaps arose, it was a question of planning judgment as to what the inspector should do with this.

Thus, in short the Court found that it was a question of planning judgment for each individual inspector to decide how to approach the issue. Some developers and local authorities have immediately taken this judgment as licence for arguing how oversupply should be had regard for. However, critically the Court have said that there is no answer to this question. Rather, this will be a battle ground for residential schemes where there has been an oversupply – unless the government wish to provide a policy.

The Council also argued that Inspector McDonald failed to explain why she reached a different conclusion to her colleague, Inspector Ware. However, the Court held that Inspector Ware had not determined the question of oversupply and thus there no requirement to explain why she was reaching a different conclusion.

View the final judgement here

View the appeal decision here

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