High Court rules on interpretation of affordable housing policy

The High Court has today allowed a claim under s 288 Town and Country Planning Act 1990 seeking to quash an Inspector’s decision to dismiss an appeal in relation to a scheme for the construction of 13 flats on top of an existing office building. The key issue in the appeal related to the interpretation of West Berkshire District Council’s affordable housing policy (Policy CS6). The policy sought to secure affordable housing provision “subject to the economics of provision” and required provision below required levels to be “fully justified” in a viability assessment which would be “used to help inform the negotiated process”. The Council and the developer had agreed that no provision of or contribution to affordable housing was viable, but the developer had made an offer to make a £25,000 contribution towards affordable housing. The Council argued that the “negotiated process” had not occurred and that the lack of affordable housing justified refusal under the relevant policy. The Inspector also found that the relevant policy was not complied with because he was “unconvinced that a proper negotiation process has been undertaken” and that it “does not follow that economic justification for the inclusion of no affordable housing means a scheme would not be acceptable”. Mr Tim Smith, sitting as a Deputy Judge of the High Court, found that this analysis contained an error of law, as the Inspector had misconstrued policy CS6. Whilst in principle it could be possible to conclude that consenting residential development without any affordable housing was “too high a price to pay”, the scope for reaching such a conclusion depended on the applicable policy. Policy CS6 would not be breached in such circumstances. The offer to make a contribution, when the viability position had already been agreed, was not the start of a negotiation but a goodwill gesture. The Judge also found that the Inspector had erred in his approach to a fall back position, but rejected a further ground based on conclusions in respect of flood risk. Richard Turney acted for the Claimant, instructed by James Kon of Asserson. The judgment can be found here.