Parkhurst Road Limited v Secretary of State (Holgate J, 27 April 2018) is a complex analysis by the High Court of issues relating to viability appraisal. Indeed Holgate J concludes an unusual postscript (paragraph 142 onwards) to his judgment by expressing the hope that “the court is not asked in future to look at detailed valuation material as happened in these proceedings“.
The Parkhurst Road dispute has indeed been protracted, to say the least.
Parkhurst Road Limited had purchased the site in May 2013 for £13.25m from the Ministry of Defence, the site having been allocated by Islington Council as a “site for intensification for residential accommodation to help meet housing need in the Borough“.
An initial development proposal for 150 homes, reduced to 116 homes, was refused by Islington in October 2014 and an appeal was dismissed on design grounds in September 2015 following a six day inquiry. There had been dispute about viability issues at that inquiry but the inspector had been satisfied with the appellant’s benchmark land value position of £13.26m, which would have led to a 14% affordable housing commitment (16 homes). He considered that market comparables relied on by PRL showed that the price paid by PRL for the site “was not of a level significantly above a market norm“. Islington had not accepted the inspector’s approach to viability (pointing to a circularity inherent in relying on market evidence of comparable transactions to the extent it may not have been adjusted to reflect the requirements of relevant planning policies) but had not challenged it, given that the appeal had been dismissed in any event.
A revised scheme was then brought forward in January 2016, for 96 homes, with the design issues resolved, but with no affordable homes, on the basis that the viability of the scheme could no justify it. Again the application was refused, effectively solely on viability grounds, due to an asserted failure to maximise provision of affordable housing as against the council’s borough wide strategic target of 50%. PRL again appealed and by the time the inquiry closed in March 2017 after nine sitting days, the position was that PRL were arguing for a reduced benchmark land value of £11.9m and proposing that 10% of the homes should be affordable housing. Islington was arguing for a benchmark land value of £6.75m, leaving headroom for 34% affordable housing. The council’s case was based on an approach of relying on a low existing use value with a premium added (EUV+). PRL’s case was based on using market signals from other transactions, disregarding transactions “which are significantly above the market norm“.
Holgate J was told “that the two decision letters on the Parkhurst Road site have generated a good deal of interest amongst planning professionals, as if either decision could be taken as laying down guidance of more general application on the approach to be followed where development viability and affordable housing contributions are in issue.”
He throws cold water on that suggestion:
“It is important to emphasise that that is not normally the function of a decision letter. The Inspector’s task is to resolve the issues which have been raised on the evidence produced in that appeal. The Inspector is not giving guidance on what course should generally be followed, even in cases raising the same type of issue. First, the application of policy often involves a good deal of judgment and second, the circumstances of an appeal (and the evidence produced) may differ quite considerably from one case to another (see eg. St Albans DC v Secretary of State for Communities and Local Government [2015] EWHC 655 (Admin)). There is a risk of attaching too much importance to the decisions of individual Inspectors, particularly where their conclusions were heavily dependent upon the circumstances of the cases before them and the nature of the evidence and submissions they received, with all their attendant strengths and weaknesses specific to that appeal. Reliance upon such decisions may take up a disproportionate amount of time and may distract parties from preparing suitable and sufficient information to deal with the circumstances and issues which arise in their own case.”
I summarised the inspector’s decision letter dismissing the appeal in my 24 June 2017 blog post Viability & Affordable Housing: Update.
The appellant challenged the decision on three grounds:
Ground 1 – the inspector erred in concluding that the council’s case was based on the EUV plus approach.
Ground 2 – the inspector did not address flaws which had been shown in the council’s valuer’s approach, applied the consultant’s method in a manner which was inconsistent with his understanding of it and failed to recognise substantial changes in the council’s case by the time the end of the inquiry was reached.
Ground 3 – criticisms of the way in which the inspector treated certain comparable transactions when arriving at his decision to accept the council’s benchmark land value figure.
Holgate J is not a judge to be cowed by disputes involving matters of valuation. He is after all President of the Lands Chamber in the Upper Tribunal and Planning Liaison Judge (ie basically the lead Planning Court judge).
He summarises Government policy on viability, quoting from paragraph 173 of the NPPF (with an interesting reference to compulsory purchase compensation principles when referring to the concept of a “willing seller”) and paragraphs 1, 19, 23 and 24 of the viability section of the Government’s planning practice guidance, asserts that the guidance places the onus on the developer to demonstrate non-viability, before summarising relevant local policies.
He addresses the RICS professional guidance, “Financial Viability In Planning“, in paragraphs 50 to 58, without criticism – noting for instance the fact that the guidance note discourages reliance upon EUV+ “as the sole basis for arriving at site value, because the uplift is an arbitrary number and the method does not reflect the workings of the market. Furthermore, the EUV Plus method is not based upon the value of the land if the redevelopment involves a different land use (eg. an office building redeveloped for a residential scheme)”.
The Secretary of State and Islington resisted the grounds but submitted that, in any event, PRL’s criticisms “do not vitiate the essential conclusion of the inspector that, contrary to local policy, the appeal proposal failed to provide “the maximum reasonable amount of affordable housing“”.
After a lengthy analysis of the decision letter as well as the arguments that had been put forward by the parties, the judge rejected grounds 1 and 3. He accepted in part PRL’s arguments in relation to ground 2, there had indeed been flaws in the council’s valuer’s approach which were not addressed properly by the inspector. However that error, in the judge’s view, did not vitiate the basis upon which the inspector rejected PRL’s case that a 10% affordable housing provision represented the maximum reasonable level and was not therefore a basis for quashing the decision.
The claim was accordingly dismissed.
Which takes us to that postscript in paragraphs 141 to 147. It is an intriguing read for what is says about, for instance the following:
⁃ The importance of overcoming uncertainty as to how viability assessment should properly be carried out, which is “making it difficult for practitioners and participants in the planning process to predict the likely outcome and to plan accordingly. It also leads to a proliferation of litigation“.
⁃ The tension that has arisen in the application of paragraph 23 of the viability passages in the PPG, which should mean reflecting and not bucking relevant planning policies when arriving at a benchmark land value, but on the other hand ensuring that the application of those policies should be informed by and not bucking an analysis of market evidence.
⁃ Data on comparables should be adjusted properly but on the other hand there are drawbacks in a simple requirement to conform to EUV+, by way of formulaic application, especially via local authority documents which have not been subjected to independent statutory examination prior to adoption.
Finally, in the context of the Government’s consultation proposals in relation to standardised inputs to viability assessments (see my 10 March 2018 blog post Developer Contributions, CIL, Viability: Are We Nearly There Yet the judge offers a suggestion:
“It might be thought that an opportune moment has arrived for the RICS to consider revisiting the 2012 Guidance Note, perhaps in conjunction with MHCLG and the RTPI, in order to address any misunderstandings about market valuation concepts and techniques, the “circularity” issue and any other problems encountered in practice over the last 6 years, so as to help avoid protracted disputes of the kind we have seen in the present case and achieve more efficient decision-making.”
That would indeed be welcome.
Simon Ricketts, 28 April 2018
Personal views, et cetera
[Colleagues at Town acted for PRL but these are, as always, my personal views].
SIMONICITY 