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    AFFORDABLE HOUSING : PLANNING INSPECTORS : PLANNING PERMISSION : RESIDENTIAL DEVELOPMENT : INSPECTOR’S FAILURE TO ANSWER CENTRAL QUESTION CONCERNING ECONOMIC VIABILITY : VITIATION OF DECISION TO GRANT PLANNING PERMISSION

    A planning inspector’s failure to determine the question of whether it was economically viable for a developer to provide affordable housing in compliance with planning guidance constituted an error of law vitiating his decision to grant planning permission for a development which did not provide affordable housing.

    The applicant local authority applied to quash a decision of the first respondent secretary of state’s inspector allowing the appeal of the second respondent (X) against the refusal of planning permission in respect of the development of residential units. X wanted to convert a London hotel site into several residential units. The site was subject to planning guidance which stipulated that affordable housing should, where appropriate, be provided. A planning inspector held a public inquiry into the development. One of the principal issues was whether, in accordance with London planning policy, X was obliged to provide affordable housing. It was X’s case that it would not be economically viable to provide such housing. The local authority disagreed. Both parties adduced detailed expert reports supporting their own case. The inspector concluded that he was unable to reach a conclusion on the evidence as to economic viability and went on to determine that, in the circumstances, X did not need to provide affordable housing and granted permission. The local authority submitted that the inspector had failed to grapple with the central issue of economic viability in relation to the provision of affordable housing despite having the benefit of detailed expert evidence and it was wholly irrational to grant permission when the site was subject to planning guidance which required developers to provide affordable housing.

    HELD: It was incumbent upon the inspector to reach a conclusion on the issue and principle of economic viability in relation to the provision of affordable housing at the site, Barnet LBC v Secretary of State for the Environment, Transport and the Regions (2002) EWCA Civ 529 considered. It was not unusual for inspectors conducting public inquiries to have to determine difficult issues of evidence and, in the instant case, the inspector’s failure to do so was an error of law vitiating his decision.


    Appeal allowed

    ROYAL BOROUGH OF KENSINGTON & CHELSEA v SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2010)

    QBD (Admin) (Sir Michael Harrison) 22/4/2010

    “Lawtel”: 26.4.10