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High Court upholds inspectors decision to prioritise 5 year housing land supply over provision of affordable housing.

A planning inspector who prioritised the contribution a site would make to a Councils five year housing supply over its ability to provide affordable housing acted rationally and with sufficient justification a High Court judge has ruled:

Planning permission was granted on appeal in July last year for a mixed use development incorporating 200 dwellings on land at Clifton Moor in York. A previous appeal for non-determination had been dismissed in 2012 on the basis that an inability to provide affordable housing would be more harmful than the failure of the site to be brought forward for development. At the date of this decision the NPPF had only been published in draft and it was reasoned that the failure to provide affordable housing would run counter to the objective of PPS3 to create sustainable, inclusive and mixed communities.

This decision was subsequently quashed in the High Court and the appeal was reconsidered. The appellant offered to provide 15% affordable housing but stated that the land would not come forward immediately. Only if the affordable housing requirement were waived completely would it do so. The inspector reconsidered in the context of the NPPF and noted that whilst it was not the role of planning system to insure against commercial loss consideration had to be given to the Councils failure to identify a 5 year supply of housing land. In this regard the Council had included the subject site in the SHLAA for delivery in first 5 years which would clearly be prejudiced.

The inspector concluded that permission should therefore be granted. Upon submission of a reserved matters application the amount of affordable housing to be provided would be calculated according to the principles of the Councils dynamic viability assessment methodology, but that the starting point would be zero affordable housing provision, thereby encouraging early delivery.

City of York Council challenged the decision in the High Court on the basis that the reasoning of the inspector was inadequate, did not enable the reader to understand why the matter was decided as it was, and that the decision was irrational.

In their ruling the judge held that the inspector had given "sufficiently clear and precise" reasons for his decision, including explanation of the weight he had given to the Council's lack of housing supply, his consideration of the Council's approach to affordable housing and his consideration of the viability of the proposal.

The judge said that the inspector's conclusions that the Council's lack of housing supply was a first priority and that the development should not be delayed by too high an affordable housing requirement were "planning judgements which are not open for challenge".

The judge also dismissed a claim that the inspector's decision had been irrational because he had taken into account the loss to be made by the developer upon a sale of the land. He noted the inspector had said the loss did not carry any significant weight and that he had not mentioned it when balancing the planning matters to reach his decision.  

In the absence of a statutorily adopted Local Plan and the failure of the LPA to demonstrate a five year supply of housing land the appeal proposals were considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing (including policies concerned with provision of affordable housing) could not be considered up-to date.

The judgement confirmed that the inspector was right to prioritise the contribution to the Councils five year housing land supply over the provision of affordable housing. It is expected to be of interest to owners of sites whose viability is marginal in current market conditions and where a relaxation of the affordable housing requirement is essential  in order for development to be brought forward.