Local plan policy – Affordable housing – Aggregation – Claimant developer appealing against refusal of permission for development – Local planning policy requiring developer to provide element of affordable housing on sites in excess of stated thresholds – Inspector dismissing appeal – Claimant applying to quash decision – Whether inspector erring in treating two development areas as part of larger site triggering obligation provide element of affordable housing – Application dismissed
The claimant developer acquired the site of a former public house, known as the Kings Head Inn in Tewkesbury Road in the village of Norton. The second defendant local authority granted planning permission for the construction of four new dwellings on the former car park site. The claimant applied for planning permission to build four new houses on the former beer garden site. The second defendants concluded that, taking the two development sites together, the applicable four-dwelling threshold for the provision of affordable housing under local planning policy HOU13 was exceeded, so that an appropriate contribution should be made. The claimant entered into a planning obligation under section 106 of the Town and Country Planning Act 1990 to make a contribution of £118,400 towards the provision of affordable housing off-site. The second defendants then granted permission. The claimant made a further application in respect of the former beer garden land, seeking approval for a slightly different layout of one of the four houses. An initial offer to make the same contribution towards the provision of off-site affordable housing was later withdrawn and the second defendants refused permission solely on the ground that the application failed to propose any contribution to affordable housing.
The claimant appealed against that decision contending that the two areas of land which were the subject of its separate planning permissions/applications should be treated as separate sites for the purposes of the affordable housing threshold, applying the criteria in R (on the application of City of Westminster) v First Secretary of State and Brandlord Ltd [2002] EWHC 2725; [2003] JPL 1066. The second defendants argued that if landowners were able to subdivide sites artificially, they could avoid requirements for the provision of affordable housing and make it difficult to secure any such housing in rural settlements. An inspector appointed by the first defendant secretary of state dismissed the appeal, concluding that the two areas were part of the overall area of land formerly occupied by the public house.
The claimant sought to challenge that decision by an application for statutory review under section 288 of the 1990 Act contending, among other things, that on its true interpretation policy HOU13 did not provide for the aggregation of areas of land for development when applying the threshold for affordable housing. Accordingly, the inspector had erred in law by treating each of the two development areas as forming part of a larger site.
Held: The application was dismissed.
(1) The inspector’s decision to use the three criteria in Brandlord involved the use of his judgment in the application of the “phased development” criterion in the local planning policy. Such a judgment could only have been criticised on grounds of irrationality which might include a failure to take into account an obviously relevant consideration or taking into account a consideration which was legally irrelevant. No such challenge was made in Brandlord. It was the very nature of the exercise of judgment or discretion that a range of different conclusions might lawfully be open to different decision-makers presented with a given set of circumstances or facts. Thus, Brandlord did not lay down any principle or rule that circumstances of the kind there considered had to be treated as involving separate developments for the purposes of applying an affordable housing policy threshold. All that happened in the present case was that the parties were content to present their respective cases under the same three criteria and the inspector chose to reach his decision by reference to them. As a matter of legal principle a different inspector presented with the same facts as in Brandlord might have come to a different conclusion: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 and R (on the application of Faraday Development Ltd) v West Berkshire Council [2016] EWHC 2166 (Admin); [2016] PLSCS 240 applied.
(2) Policy HOU13 stated that the second defendants would seek to negotiate with developers for the provision of an element of affordable housing on sites in excess of stated thresholds. However, the policy itself supplied no definitions for what was to be treated as affordable housing or the element which was required or to be negotiated, or the meaning of sites (which was not restricted to an application site). Beyond that, it was to some extent a matter of planning judgment as to how the term was to be applied. The explanatory text helped to elucidate what was meant by the language of the policy. It did not involve the imposition of a policy requirement absent from the policy itself. By definition, unless the explanatory material of a local plan merely repeated what was already contained in the policy, it would typically add provisions not contained in the policy. The supporting text was not limited to reasoned justification; it might include description and explanation. The word “elaboration” within the ambit of the policy of a local plan was permissible. The affordable housing definition provided an example of additional text which explained what was meant by language used in policy HOU13. That was in stark contrast to R (on the application of Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567; [2014] 2 EGLR 98; [2014] EGILR 35, where the subject of need, let alone a requirement to demonstrate need, was not mentioned in the policy at all.
Anthony Crean QC and Killian Garvey (instructed by Shoosmiths) appeared for the claimant; Ned Westaway (instructed by the Government Legal Department) appeared for the defendants.
Eileen O’Grady, barrister
