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Inspector acted in error in applying revoked RSS figures says Court of Appeal

An inspector who used housing supply figures from the now revoked East of England Plan as a reason for refusing an appeal for development in the green belt in St Albans acted in error, the Court of Appeal has ruled.16 Dec 2013

The case concerned an application by Hunston Properties Limited for outline planning permission for the construction of 116 dwellings, a care home and some associated facilities on five hectares of agricultural green belt land in the district of St Albans. The application was refused by St Albans Council, a decision that was backed by an inspector but overturned by the High Court.

The Council appealed against that High Court decision, and the Court of Appeal has said (12–page / 477KB PDF) that the inspector who backed the original refusal did so wrongly.

When considering the housing supply position in St Albans the inspector noted that there was a policy vacuum because St Alban's Council does not have an up-to-date development plan and the regional East of England Plan was revoked on 3 January 2013. However, she had applied the housing need target from the revoked East of England Plan on the basis that this figure was "the only figure that has been scrutinised through the independent examination process".

The Court of Appeal said the inspector was wrong to rely on the housing need figure from the East of England Plan because that figure had been arrived at by taking into account the constraint that virtually all of the undeveloped land in the St Albans district outside of the built up areas forms part of the Metropolitan Green Belt. The Court noted that in adopting a constrained figure for housing need the inspector was led to finding that there was no housing supply shortfall in the district, which was not correct.

"Where this inspector went wrong was to use a quantified figure for the five year housing requirement which departed from the approach in the Framework, especially paragraph 47," said Sir David Keene in the leading judgment. "She should have concluded, using the correct policy approach, that there was such a shortfall."

The Court of Appeal confirmed that a shortage of housing land when compared to the needs of an area is capable of amounting to very special circumstances. The National Planning Policy Framework specifies that inappropriate development in the green belt should not be approved except in very special circumstances.

"One of the considerations to be reflected in the decision on 'very special circumstances' is likely to be the scale of the shortfall" said the ruling.

As a result of the Court of Appeal's ruling, Hunston's appeal will have to be redetermined in accordance with the guidance given in the judgment.