Updates to internal inspector guidance on small site affordable housing policy

28 Apr 2017

In January we published an article regarding the Government’s written ministerial statement (WMS) on small-site affordable housing and the inconsistent approach taken by inspectors when determining planning applications within Brighton & Hove. A letter has been published by the Planning Inspectorate clarifying the correct approach, it follows a complaint made by London Borough of Richmond upon Thames regarding seven separate appeal decisions made in the Borough.

The letter published by Richmond upon Thames indicates that in their view five of these decisions were reasonable and consistent with the approach taken by the Court of Appeal’s judgment in the case of R (West Berkshire District Council and Reading Borough Council) v. Secretary of State for Communities and Local Government. In particular, the letter highlights appeal reference APP/L5810/W/16/3142005 as providing a succinct approach to the decision making process in these cases:

“24. The statutory position is that planning applications must be decided in accordance with the development plan unless material considerations indicate otherwise. I have therefore had regard to the WMS as a material consideration and having taken account of the views of the main parties on this matter I attach great weight to the WMS”.

The letter from the Planning Inspectorate indicates that two other appeal decisions (3148614 and 3156689) were misguided. In these decisions, the inspector had decided that the effect of the WMS was to reduce the weight of the statutory development plan, or automatically outweigh its policies. However, publication of the WMS should not be considered to have any direct effect on the weight or relevance of statutory development plans but should be considered as part of the overall planning balance.

As described by appeal reference 3142005, the decision making process should:

  1. Start with the development plan and any evidence provided by the local planning authority (LPA) supporting the need for affordable housing
  2. Establish whether the proposed development is in conflict with affordable housing policies within the statutory development plan, and where there is conflict,
  3. Then go on to attach weight to the WMS as a national policy that post-dates the development plan policies.

Having taken all of the above into account, the decision taker is then within their right to grant significant weight to the WMS in favour of proposals that do not provide an affordable housing contribution in conflict with the statutory development plan. Equally, they may consider that the evidence provided by the LPA supporting the need to provide affordable housing is sufficient to outweigh the WMS and subsequently refuse such applications.

Consequently, the Planning Inspectorate concede that there were errors in the approach in relation to appeals 3148614 and 3156689, which was to diminish the weight of the relevant development plan at the outset, rather than providing the WMS relevant weight in the balancing exercise. Further updates and strengthening of internal inspector guidance is being undertaken, with the hope that this should lead to more consistent decision making on this issue in the future.

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