Atlantic Housing Ltd v Secretary of State for Communities & Local Government & Anor

In assessing planning permission affecting residents’ homes, the decision-maker must consider the proportionality of the proposed aim and the means of achieving it. The grant of planning permission may properly address whether the development has a proportionate aim. The proportionality of eviction and relocation may instead be assessed through the later possession proceedings, where the court must consider the individual resident’s circumstances and human rights. An inspector errs in law by treating uncertainty about tenancy rights as establishing a likely breach of Article 8 without understanding the statutory protection available. A material error concerning an infrastructure obligation also justifies quashing where the court cannot conclude that the same decision would have been reached without the errors.

The claimant, a housing association, challenged under section 288 of the Town and Country Planning Act 1990 two inspector decisions dismissing appeals against Eastleigh Borough Council’s failure to determine applications for redevelopment of the Velmore Estate. The proposals involved demolishing existing accommodation for elderly residents and providing replacement affordable housing. The inspector considered Article 8, infrastructure provision and the enforceability of a section 106 undertaking. The central issues were whether the inspector had lawfully assessed the residents’ human rights and whether his conclusions concerning the infrastructure obligation disclosed errors of law.

1. The claim succeeded. Both inspector decisions were quashed and the matters were remitted for reconsideration. The procedure for reconsideration, whether written representations or an inquiry, was left to be determined after submissions by the interested party.

2. Article 8 was engaged because demolition and eviction would interfere with residents’ private lives and homes. The relevant proportionality assessment involved both the aim pursued and the means used to achieve it. The proposed redevelopment had a legitimate and necessary aim, including replacing substandard accommodation and increasing affordable housing. The inspector’s conclusion that the interference was therefore disproportionate was legally erroneous.

3. The means of achieving the aim could properly be considered through the possession process. The relevant tenancy protection required suitable alternative accommodation and made eviction subject to the court’s discretion that it was reasonable. Suitability depended on the individual tenant’s circumstances, including age, physical fitness and mental state. The County Court, as a public body, would have to consider the resident’s human rights before making an eviction order.

4. The inspector misunderstood the effect of the tenancy arrangements and wrongly treated the available evidence as insufficient to establish that Article 8 would not be breached. He also failed expressly to address the claimant’s rights in the proportionality balance.

5. The inspector further erred in law by treating the absence of a date on the section 106 undertaking as making it incomplete and unenforceable. His concern about a charge affecting the claimant’s title was, however, based on the material actually before him; a decision-maker is not generally required to investigate evidence which has not been provided. The court nevertheless could not say that the decisions would have been the same without the identified errors.

The claimant brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to two inspector decisions arising from deemed refusals by Eastleigh Borough Council. The Administrative Court quashed both decisions and remitted the matters for reconsideration.