Although an inspector, in determining a planning appeal, is entitled to attach such weight as he considers appropriate to any material consideration that he is obliged to take into account, this does not relieve him from the responsibility of reaching a conclusion on any disputed issue arising out of such a material consideration.
In Kensington and Chelsea Royal London Borough Council v Secretary of State for Communities and Local Government [2010] PLSCS 113, a developer had been refused planning permission by the local planning authority (LPA) for a change of use of premises from a hotel to nine residential units. It appealed to the Secretary of State and an inquiry was held. The development proposals did not provide for affordable housing and a key issue at the inquiry was whether such provision on the site, or a financial contribution to its provision elsewhere, would render the development financially unviable.
The development plan stated that affordable housing should normally be provided on sites that had capacity for 10 or more homes, but that the targets should be applied flexibly having regard to such matters as financial viability. It also referred to a Toolkit programme into which various input values could be fed to produce an analysis of economic viability, with the proviso that this was only a helpful mechanism and not a requirement.
The defendant and the LPA had each produced a Toolkit analysis, but these produced widely differing results. The inspector considered the evidence of both parties’ experts but felt unable to reach a conclusion on the issue because of the extent of the dispute between them. He attached little weight to the Toolkit analyses and instead gave greater weight to other material considerations, such as the policy of encouraging residential development and the practical difficulties of incorporating affordable housing into the development. He concluded that it would not be reasonable to require any affordable housing provision and granted planning permission.
The LPA’s challenge, under section 288 of the Town and Country Planning Act 1990, was successful and the inspector’s decision was quashed. The court held that it had been incumbent on the inspector to reach a conclusion on the issue of economic viability; this was a principal and important issue. Although he had set out the evidence of both parties, his failure to determine which was to be preferred amounted to an error of law that vitiated his decision.
John Martin is a freelance writer
