Zins, R (On the Application Of) v East Suffolk Council

A planning permission may reserve detailed matters for later approval by condition, provided the local planning authority retains control over the reserved scheme. Such a condition is not unlawful merely because the authority may later exercise planning judgment or approve a scheme that is not policy-compliant.

Policy DM2 required one affordable dwelling in three, subject to its stated exceptions, but did not prescribe the size or tenure mix of affordable housing. Supporting text setting area-wide tenure targets did not impose site-specific requirements. A planning committee is not materially misled where the relevant issues, objections and effect of the condition are adequately before it. An erroneous application of the tilted balance is immaterial where the same permission would necessarily, or highly probably, have been granted on the alternative planning analysis.

The claimant sought judicial review of East Suffolk Council’s grant of planning permission to Active Urban (Woodbridge) Ltd for 100 residential units, including 32 affordable dwellings, at the former council offices at Melton Hill, Melton.

The challenge concerned two grounds. First, the claimant argued that the Council had unlawfully treated the proposal as policy-compliant while leaving tenure, size and possible off-site provision of affordable housing to a future scheme under condition 10. Secondly, he argued that the Council had wrongly applied the National Planning Policy Framework’s tilted balance because its housing policy was said to be out of date despite a five-year housing land supply.

The central issues were whether the permission and condition lawfully secured affordable housing, whether the planning committee had been materially misled, and whether any error concerning the tilted balance affected the decision.

1. Claim dismissed. The permission described development including 32 affordable dwellings. Condition 10 required a scheme to be submitted and approved before development could begin. The Council therefore retained control over the numbers, type, tenure, location, management arrangements and any alternative delivery mechanism.
2. It was lawful in principle to reserve those matters for later approval. The condition did not give the interested party unilateral control over off-site provision. The Council could scrutinise the proposed search for a provider, the terms sought and the circumstances in which an alternative mechanism could operate.
3. Policy DM2 of the adopted Core Strategy required an expectation of one affordable dwelling in three and an expectation of on-site provision unless exceptional circumstances applied. It did not prescribe the size or tenure mix of the affordable dwellings. The supporting text’s 75 per cent affordable-rented and 25 per cent other-affordable target concerned provision across the district and did not impose a requirement on every site.
4. The Council was therefore entitled to regard at least 32 affordable units out of 100 as compliant with Policy DM2. The size and mix of the units remained matters of planning judgment. Members had been given sufficient information about those matters and the objections to them, so they were not materially misled. The same reasoning applied to the emerging affordable-housing policy.
5. The Council’s treatment of the tilted balance did not justify quashing the permission. Even if the balance should not have been applied, the officers’ report showed that the proposal was considered compliant with the development plan and that its benefits outweighed identified harm. The outcome would necessarily, or at least highly probably, have been the same.