London Borough Of Barnet v Secretary Of State For Environment, Transport & Regions

In reviewing a planning inspector’s decision, the court respects the inspector’s findings of fact and planning judgment. Intervention is justified only for irrationality, unlawfulness, error of law or procedural unfairness. Reasons must make the decision intelligible and address the main issues, but need not answer every point raised. Under paragraph 10 of Circular 6/98, the inspector must consider site size, suitability, particular development costs, possible prejudice to other planning objectives and whether the proposal would be a successful housing development. A separate finding of overall viability is not invariably required. Paragraph 22 applies only where the paragraph 10 criteria are satisfied.

McCarthy & Stone (Developments) Ltd applied for permission to build 43 sheltered apartments and accommodation for a manager on a former petrol-station site. The local planning authority failed to determine the application within the statutory period, and the developer appealed to the Secretary of State.

The Inspector allowed the appeal and granted permission. The Council sought judicial review. The Secretary of State conceded that the Inspector had not given adequate reasons concerning housing grant and the economic viability of affordable housing. Stanley Burton J accepted the concession, quashed the decision and additionally held that it was perverse.

The developer appealed. The central issues were whether the Inspector had adequately considered the economics of including affordable housing in the particular proposal, whether he was required to determine the site’s overall viability, and whether paragraph 22 of Circular 6/98 applied.

Appeal allowed unanimously, with costs here and below. The Inspector’s decision was upheld.

1. Judicial review principles. Findings of fact and matters of planning judgment belonged to the specialist Inspector. The court could intervene only for irrationality, unlawfulness, an error of law or procedural unfairness. The reasons had to make the decision comprehensible and address the main issues, but the decision letter was not to be analysed as if it were a statute or examination answer.
2. Application of Circular 6/98. The relevant question was whether affordable housing should be included in the proposed development. Paragraph 10 required consideration of the site’s size, suitability, particular costs, possible prejudice to other planning objectives and whether the resulting scheme would be a successful housing development. The Inspector was entitled to treat the particular costs of the site and scheme as a potential deterrent. He was not required to make a definitive finding on overall economic viability.
3. The availability of social housing grant did not address whether affordable housing should be included on this site. Evidence that the whole site might be viable as an affordable-housing scheme did not materially illuminate the viability of the particular sheltered-housing proposal. The Inspector was entitled to accept the developer’s evidence about the deterrent effect of including affordable housing, despite the absence of detailed financial analysis.
4. The Inspector had separately and clearly concluded that including affordable housing would not produce a successful housing development. That conclusion, together with his other findings, provided intelligible and lawful reasons for the decision.
5. The Council’s new argument that the inquiry had to consider any possible development of the site, rather than the proposal advanced, had not been raised below. The court declined to determine it. Since the paragraph 10 criteria had not been met, the Inspector was entitled to conclude that paragraph 22 of Circular 6/98 had no application.

• High Court of Justice, Queen’s Bench Division, Administrative Court: Stanley Burton J accepted the Secretary of State’s concession, quashed the Inspector’s decision and held additionally that it was perverse.
• Court of Appeal (Civil Division): allowed the developer’s appeal, upheld the Inspector’s decision and ordered costs here and below.