The Court of Appeal has dismissed an appeal by Jelson Ltd against the judgment of Green J [2009] EWHC 2979 (Admin) in which he rejected its challenge to a decision by an Inspector on a section 78 appeal.

At issue was the Inspector’s approach to calculating the figure for the OAN in the borough, and specifically the relationship between the figure for overall housing need derived from the demographically-led household projections and the separate figure identifying the level of need for affordable housing.

Lindblom LJ (with whom Rupert Jackson LJ and Peter Jackson LJ agreed) found that the way that the Inspector had approached this task was lawful, making the following points:

Responsibility for the assessment of housing need lies with the decision-maker and is no part of the court’s role in reviewing the decision.  He emphasised the broad scope for a reasonable and lawful judgment and discouraged a legalistic approach to the review of such judgments.

The Inspector lawfully accepted the relevance of the need for affordable housing in assessing overall housing needs.  She exercised her judgment in taking it into account to reach an overall figure which, as a matter of planning judgment, sufficiently embraced the need for affordable housing as a necessary component of the full objectively assessed needs for housing in the area.

This was done by making what she judged to be an appropriate addition to the demographically-led household projections to ensure that the need for affordable housing was not omitted or understated.

The Inspector was right to recognise that simply adding the two need figures together would have been inappropriate and would have involved double-counting.  Planning judgment was required in gauging a suitable uplift to take account of the need for affordable housing, without either understating or overstating that need.

The figure identified within the SHMA to show how much open market housing would be needed to deliver the identified level of affordable housing need was rightly treated as not representing full objectively assessed need.

A copy of the earlier High Court judgment can be found here.