Cotswold District Council had launched a challenge to quash the SoS decisions to grant permission for the two schemes because it said the SoS had failed to take into account another recent appeal in which a Planning Inspector had found that the Council did not have an under delivery of housing.
In the Tetbury appeals, which were decided in July last year, the SoS had considered that the Council had a persistent under delivery of housing and that a 20% buffer should be added to the Council's existing housing need as required by the National Planning Policy Framework (NPPF).
However, in an appeal relating to a site in Kemble decided a month earlier, a Planning Inspector had concluded that the Council did not have a persistent under delivery of housing and had instead applied a 5% buffer to the housing need. In both the Tetbury and the Kemble appeals, it was found that the Council could not demonstrate the five year housing land supply required under the NPPF.
The Council argued that the SoS had not had regard to the Kemble appeal when he made his decisions on the Tetbury appeals and that he had not explained why his decision differed from that of the Inspector's in the Kemble appeal.
The judge said that the SoS would only have a duty to have regard to the Inspector's report in the Kemble appeal if it were drawn to his attention. As the report had not been drawn to the SoS's attention, he had not acted unlawfully, the judge said.
The judge said that all the facts and reasoning considered by the Inspector in the Kemble appeal had also been known and considered by the Inspector in the Tetbury appeals. "The reports in those appeals make it clear why the inspector reached a different conclusion on those matters from the inspector in the Kemble appeal," the judge said.
“She considered that looking back five years and considering the Structure Plan figures for that period was reasonable and demonstrated that there had been a shortfall. She considered the fact that there had been an economic downturn but noted that the under delivery had been occurring over the last 10 years and even before the down turn began. She considered the shortfall over the entirety of the Structure Plan period. Significantly, she considered that the Structure Plan itself understated the housing requirements," said the judge.
"There is, in substance, no unexplained inconsistency between the approach taken in the Kemble appeal and that taken in the Highfield and Berrells Road appeals. In the circumstances, therefore, even if there had been an unlawful failure to have regard to the Inspector's decision, it would not be appropriate to quash the Highfield or the Berrells Road decision," the judge concluded.