Blyth Valley Borough Council v Persimmon Homes (North East) Ltd & Ors

A development-plan policy fixing a proportion of affordable housing must comply with the national policy requirements applicable at its examination. A requirement for an informed assessment of economic viability is central to the validity of a target and cannot be deferred to later site-specific planning decisions.

An earlier housing-needs study cannot provide a robust and credible evidence base for a target where it used a materially different definition of affordable housing. In determining whether a development-plan document is sound, an inspector must make an independent and inquisitorial assessment. The statutory task does not impose a presumption of soundness or an onus on objectors to prove unsoundness.

The Borough Council adopted a Core Strategy containing policy H4, which sought 30 per cent affordable housing on housing developments capable of providing ten or more dwellings. Three developers challenged the policy under section 113(3) of the Planning and Compulsory Purchase Act 2004.

Collins J quashed policy H4 in the Administrative Court. The Council appealed. The central issue was whether the inspector had been entitled to find that the policy complied with Planning Policy Statement 3 and was sound, despite the absence of an informed assessment of the economic viability of the 30 per cent target.

1. Appeal dismissed unanimously. Lord Justice Keene, with whom Lord Justice Lloyd and Lord Justice Hughes agreed, held that Collins J was right to quash policy H4.

2. Planning Policy Statement 3 made an informed assessment of the economic viability of an affordable-housing percentage a central requirement. Policy H4 did not satisfy that requirement. The inspector therefore erred in finding that it complied with the national policy. Viability could not be left to later planning appeals because the requirement concerned the content of the development plan itself.

3. The 2004 Housing Needs Study could support the existence of need, but not the soundness of the 30 per cent target. It had used the earlier, broader definition of affordable housing, whereas policy H4 adopted the narrower definition in Planning Policy Statement 3. The inspector also failed to address that change when treating the study as a robust and credible evidence base.

4. Under section 20(5) of the Planning and Compulsory Purchase Act 2004, the inspector had to determine whether the document was sound. That was an at least partly inquisitorial task. The statutory language did not create a presumption of soundness or require objectors to prove unsoundness. The inspector's contrary approach was an error of law.

5. The inspector's conclusion that there was no evidence that sites would not come forward was also unsustainable, given the evidence that a major allocated site would be unviable with a 30 per cent requirement. These defects vitiated the recommendation on which the adopted policy depended. Policy H4 was outside the appropriate power within section 113(3) of the Planning and Compulsory Purchase Act 2004.

1. Court of Appeal (Civil Division) — dismissed the Borough Council's appeal and upheld the quashing of policy H4: [2008] EWCA Civ 861.

2. High Court of Justice, Queen's Bench Division, Administrative Court — Collins J quashed policy H4 under section 113(3) of the Planning and Compulsory Purchase Act 2004. No citation for that decision is stated in the judgment.