Home > Cases > High Court dismisses challenge to Inspector’s approach to viability review mechanisms

The High Court (Lang J) has dismissed a statutory challenge against the Secretary of State’s decision to dismiss the appeal brought by the claimant, Xyan Holdings, seeking planning permission for a residential-led scheme including a 25 storey tower element.

On appeal (APP/W5780/W/18/3200299), the base level provision of affordable housing offered by the claimant was zero (on viability grounds) but the claimant committed to both early and late stage reviews through review mechanisms in a unilateral undertaking.

The inspector summarised the claimant’s case as being “in essence […] that while the appeal development is currently unviable it will become viable in due course because of Crossrail’s effect. It is therefore argued that the consideration of the affordable housing requirement should, in effect, be put off for another day”. The inspector rejected that proposition as “very uncertain and not a compelling one”, noting inter alia that there would be scope for the need for an early stage review never to come into play and that it was possible that no significant uplift in values would have arisen at the point when a late stage review was triggered. He attached very little weight to the affordable housing obligations in the UU, concluded that the development would make inadequate provision for affordable housing (and would not accord with the development plan or with the NPPF) and dismissed the appeal.

In the High Court, Lang J rejected the claimant’s argument that the inspector had misinterpreted Policy LP3 of the Local Plan and had erroneously understood it to exclude the possibility of review mechanisms in circumstances where the base level affordable housing offer was zero. The inspector had been entitled to observe that the policy “appear[ed] not to promote” a starting position whereby the setting of the whole of a development’s affordable housing provision should be deferred until after planning permission had been granted. The Inspector had also correctly applied the London Plan and had regard to the PPG and the NPPF.

Heather Sargent appeared for the Secretary of State

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