Robert Hitchins Ltd v Secretary of State for Communities and Local Government & Anor

In determining a planning application, the viability of affordable housing may be assessed against the development’s extended timescale and the possibility of improved market conditions. General economic conditions are material considerations, but temporary adverse conditions need not justify a reduced affordable-housing contribution where the site is strategically important and future viability is reasonably possible.

Under Planning Policy Statement 3, the suitability of a site may include its contribution to sustainable, inclusive and mixed communities, including an appropriate mix of affordable and market housing. The balance between housing delivery and affordable housing is a matter of planning judgment.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 the Secretary of State’s dismissal of an appeal concerning an application for up to 750 dwellings and associated facilities at Lydney B, Gloucestershire. The application had not been determined by the local planning authority and was recovered for decision by the Secretary of State.

The Inspector recommended refusal. The principal issue was whether the proposed affordable-housing provision, reduced from 30 per cent to 13 per cent because of the credit crunch, was sufficient having regard to viability, the development plan and Planning Policy Statement 3. Further issues concerned housing-land supply, section 106 contributions, open-space provision, bonding and the reasons given for refusal.

1. The application was dismissed. The Inspector’s report and the Secretary of State’s decision had to be read fairly and as a whole. Although paragraph 219 of the report, taken alone, might suggest that general economic conditions were irrelevant, the report repeatedly treated them as material but gave them little weight because the development was expected to extend over many years and the downturn was likely to be temporary.
2. There was no legal error in treating the possibility of future economic improvement as relevant. The Inspector was entitled to take account of the site’s special importance, the prolonged development period and the absence of other allocated sites capable of meeting the identified affordable-housing need.
3. Under Planning Policy Statement 3 paragraph 54, “suitable” could include whether the proposed development would contribute to sustainable, mixed communities. In context, mixed communities included an appropriate mix of affordable and market housing. The word “site” did not require the decision-maker to disregard the scheme proposed for that site. Alternatively, paragraphs 69 and 71 required regard to the wider housing objectives in any event.
4. The expected affordable-housing percentages were not inflexible requirements. Whether a lower proportion was acceptable depended on the circumstances and remained a planning judgment.
5. The Inspector was entitled to find the proposed community-facilities contribution inadequate without identifying the exact sum required to overcome the objection. A financial bond could also be required to secure infrastructure obligations where the scale and duration of the development created a substantial enforcement and public-funding risk.
6. The Inspector did not ignore housing-land, regeneration or employment benefits and gave adequate reasons. The court would not substitute its own planning judgment under section 288.