Judge quashes decision by planning inspector over failure to take account of unilateral undertaking by developer

Mr Justice Eyre found this had been irrational and that inadequate reasons had been given.

Tiwana brought the case against the Secretary of State For Housing, Communities and Local Government and West Suffolk District Council, which had originally rejected its application for 10 self-build homes.

Planning inspector Sheila Holden upheld West Suffolk’s decision but the court heard that between the end of the appeal hearing and the decision letter being issued, Tiwana submitted two draft section 106 agreements and a unilateral undertaking to the inspector.

These provided for three of the 10 units to be affordable but the developer said Ms Holden did not take account of either the draft section 106 agreements or the unilateral undertaking.

Tiwana said the unilateral undertaking was an obviously material consideration and failing to consider it was irrational.

The Secretary of State though said there was no irrationality as neither the unilateral undertaking nor a section 106 agreement had been put in evidence at the appeal, and Ms Holden had agreed an extended period for the submission of a section 106 agreement, but Tiwana had not done so.

Reasons for her actions in the decision letter were “sufficiently clear and that in the circumstances of this case the failure to give any fuller explanation has not prejudiced the claimant”, the Secretary of State said.

The Secretary of State went on to argue that even if the failure to take the unilateral undertaking into account was irrational, relief should be refused because the outcome would have been the same.

West Suffolk had originally refused permission because of failures to meet requirements for 30% affordable housing and infrastructure provision.

Ms Holden had decided that the appeal would fail regardless of the affordable housing issue .

Eyre J said: “The inspector made a deliberate decision to side-step the question of affordable housing in the decision letter.

“She took, therefore, a deliberate decision not to explain either why she was not taking the proffered affordable housing into account as a positive factor in favour of the appeal nor why she had no regard to the unilateral undertaking.”

He added this had meant Tiwana “was not given even the briefest of explanations as to why the affordable housing, for which the unilateral undertaking made provision, had not been taken into account. There was a failure to provide the reasons for the decision on a contentious matter of importance”.

The judge said Tiwana did “suffer real and substantial prejudice…[as its] ability to assess the lawfulness and rationality of the decision was thereby impaired as was its ability to understand whether any different proposal would be acceptable”.

Eyre J found that in disregarding the unilateral undertaking “the inspector irrationally failed to have regard to an obviously material consideration”.

The Secretary of State argued that if Ms Holden had considered the unilateral undertaking the outcome would have been the same because her draft decision letter said that even when account was taken of affordable housing, the planning balance fell against Tiwana.

Eyre J said this through did not demonstrate the high degree of likelihood necessary.

He said: “Although it is likely that the balance would have remained the same that is not necessarily the position: it may be that the weight given to various of the considerations might have been increased or reduced.”

The judge went on to explain: “It is at least possible that if the inspector had considered the unilateral undertaking and had taken account of that provision she would have increased the weight she attached to affordable housing as a positive factor in favour of the appeal.

“It cannot, therefore, be said that the outcome would necessarily have been the same and relief is not to be refused on that basis.”

Mark Smulian