The secretary of state’s decision to dismiss an appeal for 184 homes – putting aside various conditions intended to secure planning benefits – was quashed by the High Court in Verdin (t/a the Darnhall Estate) v Secretary of State for Communities and Local Government and others [2017] EWHC 2079 (Admin).
The inspector recommended approval despite prematurity concerns raised by the local authority on the emerging neighbourhood plan. The secretary of state then reopened the inquiry eight months after submission of housing land supply (HLS) evidence to take into account the intervening adoption of the neighbourhood and local plans (and the HLS being established elsewhere on appeal). The claimant proposed new conditions including: the provision of self-build plots and plots for local SME housebuilders; training and employment measures; and local construction procurement. The inspector took these into account in the planning balance and recommended allowing the appeal. He noted, however, that the self-build condition would not include any “mechanism to prevent self-build plots lying undeveloped whilst the rest of the development went ahead”.
The secretary of state rejected the conditions as failing the relevant policy tests (and so disregarded them) given his concerns about relevance, materiality, enforceability and reasonableness. He dismissed the appeal on the basis that the relevant considerations attracted on just moderate weight and did not outweigh the conflict with the neighbourhood plan.
The High Court held that the secretary of state had failed to give adequate reasons for rejecting all the conditions, other than on the self-build plots controls. He had given adequate reasons in explaining the planning judgement on the risk that the plots would remain undeveloped (and so impose an unfair burden on the developer). On the other conditions his decision either did not include any “intelligible support” for the approach, or – where there was adequate reasoning – it was Wednesbury perverse and so irrational. The conditions were plainly relevant, enforceable and reasonable and should have been taken into account in the balance. The outcome would therefore not have been inevitably the same and the secretary of state’s refusal was quashed.
The decision is an oddity given both the acknowledged absence of planning harm (other than to the principle of the plan-led system) and the government’s commitment to house building, market diversification and self-build. The redetermination of the appeal will give the secretary of state the opportunity to consider (and convey) how much weight should be given to the affordable housing, market diversification, job creation and self-build benefits secured by the conditions in this light.
Roy Pinnock is a partner in the planning and public law team at Dentons
