Vicarage Gate Ltd v First Secretary of State

In a planning decision, the decision-maker must identify the relevant development-plan policies, identify and weigh material considerations, and determine the application in accordance with the plan unless material considerations indicate otherwise. Planning advantages arising from one aspect of a proposal must be weighed against harm arising from another. Policies expressed as matters the authority wishes to encourage cannot, without more, justify refusal. An inspector must address a materially relevant earlier decision and explain any departure from it. Policy may require an applicant to produce cogent evidence before a protected use is lost, but the decision-maker must not treat legal burdens or standards of proof as governing planning inquiries.

Vicarage Gate Ltd challenged, under section 288 of the Town and Country Planning Act 1990, an inspector’s decision dismissing appeals against the failure of the Royal Borough of Kensington and Chelsea to determine applications for planning permission and conservation-area consent. The applications concerned demolition of a former nursing home and construction of 12 residential apartments.

The inspector found conflict with policies protecting elderly persons’ accommodation, affordable-housing policies and policies concerning housing mix. The Secretary of State conceded errors concerning the standard of proof and the treatment of housing-mix policies. The central issues were whether the inspector had acted fairly and lawfully in interpreting policy, weighing affordable housing against care-home provision, considering an earlier decision, and assessing housing mix.

1. Judgment for the claimant. Both decisions in the inspector’s decision letter were quashed. The claimant succeeded on grounds 1, 2, 7, 9, 11 and 14. Grounds 5, 6, 8, 10, 12 and 13 failed. Grounds 3 and 4 would have failed had grounds 1 and 2 not succeeded.

2. Under section 70 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004, the decision-maker must identify the relevant development-plan policies, identify material considerations, and determine the proposal in accordance with the plan unless material considerations indicate otherwise. The process requires the decision-maker to weigh planning advantages from one aspect of a proposal against disadvantages arising from another and give adequate reasons.

3. The inspector had to weigh the benefit of enhanced affordable-housing provision against the harm found from loss of care-home provision. It was inadequate to state merely that there was demand for both. The inspector had to address the relative level of need or requirement and the effect of the competing forms of provision. His reliance on the site’s lawful Class C2 use and the absence of amenity problems did not explain why retaining or resuming that use was more advantageous than providing affordable housing.

4. The inspector relied on sections 3 and 121 of the Care Standards Act 2000 to distinguish accommodation involving personal or nursing care from other elderly persons’ accommodation. That approach had not been raised at the inquiry, and differed from the position advanced by the local authority. The failure to invite submissions caused procedural unfairness. The interpretation of policies SC2 and H24 was therefore unsafe.

5. Policy SPG7 could require an applicant seeking a change from a protected care-home use to produce robust evidence of non-viability and genuine marketing. Although legal burdens and standards of proof are inappropriate imports into planning inquiries, policy may place an evidential responsibility on an applicant and require a strong case before protected use is lost. The inspector’s use of “beyond reasonable doubt” did not itself establish an unlawful standard because he was describing his inability to reach a conclusion, not prescribing the applicant’s legal burden.

6. The inspector was required to address the Aubrey Walk decision, which concerned materially similar off-site affordable-housing provision, and give reasons for adopting a different approach. He failed to do so. Policies H18 and H19 were expressly “encouraging” policies which could not of themselves provide reasons for refusal. The inspector’s contrary approach was inconsistent with the development plan and legally impermissible. His factual conclusion about other developments and smaller units also lacked evidential support.

7. The challenges based on the inspector’s treatment of London Plan policy 3A.14, density arguments and the local planning authority’s evidence failed. The inspector was entitled to exercise planning judgment on those matters. Permission to appeal was refused, and costs were ordered against both defendants.

The judgment describes a challenge to an inspector’s decision dated 4 November 2005 dismissing appeals under section 78 of the Town and Country Planning Act 1990. This court quashed both the planning and conservation-area decisions.