Town and country planning – Planning permission – Affordable housing – Claimant applying for statutory review of dismissal of appeal against refusal of planning permission for residential development – Whether proposal providing maximum reasonable level of affordable housing – Application dismissed
The claimant challenged the decision of an inspector appointed by the first defendant secretary of state in which its appeal against the refusal of planning permission by the second defendant local authority for the redevelopment of the former Territorial Army Centre, Parkhurst Road, Islington, London was dismissed. The site comprised about 0.58ha of land and had been vacant for several years. The claimant had purchased the site for £13.25m in 2013. Its application for planning permission for a scheme for 112 homes in 2014 was refused. That decision was upheld on appeal on grounds that it would damage the area’s character and appearance. The second defendant considered that the claimant had overpaid for the site and as a result had not followed its policy of providing 50% affordable homes in new developments. The claimant made a further application in January 2016 for 96 homes, which was refused on grounds that the claimant had failed to demonstrate that the proposed development would provide the “maximum reasonable amount of affordable housing”.
The parties were divided on how to calculate the benchmark land value of the site (BLV) (the price at which a reasonable landowner would be sufficiently incentivised to be willing to sell the site for alternative development) which was crucial to the question of maximum reasonable amount of affordable housing. The second defendant maintained that the site should be making a substantial contribution towards affordable housing, as the existing use value (EUV) was negligible, and there was no alternative form of development which could generate a higher alternative use value (AUV). The achievement of the affordable housing objective was being frustrated by the claimant’s use of a greatly inflated BLV for the site. The claimant argued that the correct approach to BLV was using market value or market signals.
The inspector accepted the second defendant’s figure on the basis that the claimant had failed to give adequate effect to policy requirements for affordable housing. The claimant applied for statutory review of that decision contending that it resulted from a legal error in the assessment of the evidence which tainted the inspector’s rejection of the claimant’s viability appraisal.
Held: The application was dismissed.
(1) Decision letters were written principally for parties who knew what the issues were and what evidence and argument had been deployed. In the present case, the 2017 inquiry lasted nine days, copious evidence was produced to the inspector and lengthy submissions made. The two decision letters on this site had generated interest among planning professionals, as giving guidance of more general application on the approach to development viability and affordable housing contributions. That was not normally the function of a decision letter. The inspector’s task was to resolve the issues which had been raised on the evidence. The inspector was not giving guidance on what course should generally be followed, even in cases raising the same type of issue. In the present case, certain of the claimant’s grounds of challenge involved dissecting the inspector’s decision letter and some of the evidence. The parties had had to refer to large parts of the evidence before the inquiry in order that the subject might be understood as a whole and provide context for the concisely expressed reasoning in the decision letter. It was only in exceptional circumstances that that should be allowed in the High Court, bearing in mind its limited role in applications for statutory review. Furthermore, it might be difficult to have a proper understanding of the conclusions reached by inspectors without access to the evidence and submissions before them: St Albans District Council v Secretary of State for Communities and Local Government [2015] EWHC 655 (Admin); [2015] PLSCS 92 and Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2017] PTSR 1283 considered.
(2) The effect of the policies in the London Plan and Islington Core Strategy was that, where an applicant seeking planning permission for residential development in Islington proposed that the “maximum reasonable amount of affordable housing” was lower than the borough-wide 50% target on viability grounds, it was his responsibility to demonstrate that that was so. Where, in the context of determining a planning application, a policy required an applicant to demonstrate a state of affairs, then although he was not under a legal burden of proof, the effect in forensic terms was similar. The party identified by the policy still had to adduce evidence to the standard set by the policy. In such a case, it was permissible for an inspector to reject that party’s case as lacking sufficient cogency to satisfy the policy. Thus, a policy requirement could give rise to an evidential burden. In the present case, the proposed residential development would accord with a number of development plan policies and objectives, particularly those that promoted the delivery of housing. However, the appeal proposal would not provide the maximum reasonable level of affordable housing and the submitted planning obligation did not provide a suitable means for a viability review. Having regard to the development plan as a whole, the appeal proposal was in clear conflict: Vicarage Gate Ltd v First Secretary of State [2007] EWHC 768 (Admin); [2007] PLSCS 88 and Harris v First Secretary of State [2007] EWHC 1847 (Admin) followed.
Per curiam: One of the key objectives in the planning system was efficiency in decision-making to avoid delay in bringing about necessary or beneficial development. The present case illustrated the importance of overcoming uncertainty on how viability assessment should be carried out. It might be an opportune moment for professional bodies and government to revisit the guidance on financial viability in planning in order to address any misunderstandings about market valuation concepts and techniques to avoid protracted disputes of the present kind. The High Court was not the appropriate forum for resolving issues of the kind which the inspectors dealing with this site had to consider.
Russell Harris QC (instructed by Town Legal LLP) appeared for the claimant; Tim Buley and Toby Fisher (instructed by the Government Legal Department) appeared for the first defendant; Daniel Kolinsky QC (instructed by London Borough of Islington) appeared for the second defendant.
Eileen O’Grady, barrister
