Court of Appeal Overturns Planning Policy Case

The Court of Appeal has overturned the decision of the High Court in the case of R (on the application of West Berkshire DC) v Secretary of State for Communities and Local Government, and held that the planning policy exempting small sites from affordable housing obligations is lawful.

On 28 November 2014 planning policy was introduced, by way of a Written Ministerial Statement, which amended national policy so that small sites, being sites of 10 units or 1000 square metres or less, were exempt from the requirement to make affordable housing contributions.

Both West Berkshire District Council and Reading Borough Council made an application for Judicial Review following the implementation of the policy as they were concerned the policy would reduce the provision of affordable housing. The High Court ruled in favour of the Councils and held the policy was unlawful due to the following grounds:

1. The policy was inconsistent with the statutory planning regime
2. The Secretary of State had failed to take into account necessary material considerations;
3. The consultation of the Secretary of State was legally inadequate; and
4. The Secretary of State had failed to assess the impact of the policy on persons with protected characteristics under section 49 of the Equality Act 2010.

As a result of this decision the Government announced that the national planning guidance would be amended to remove reference to this small sites exemption.

The Secretary of State subsequently appealed the decision on all four of the above grounds. The Court of Appeal upheld the appeal and further held:

1. The policy was not inconsistent with the statutory planning regime - the language of the policy is in mandatory terms, i.e. it states "a threshold beneath which affordable housing contributions should not be sought"; this use of language is not unobjectionable as the aim or goal of the policy is that it should be followed. Further the Secretary of State is entitled to make policy and in that role he may prefer his own policy to that of a development plan in the case of a conflict and he is entitled to do so provided all procedural, statutory and common law requirements are complied with.
2. The Secretary of State had not failed to take into account necessary material considerations - the Secretary of States policy choices are for him subject to any statutory constraints. He can decide to cover small or larger territories or he can address few or many issues. The law does not lay down merits criteria for planning policy or what the Secretary of State should or should not regard as relevant to the exercise of making policy
3. The consultation of the Secretary of State was not legally inadequate - the Court held both the consultation process was fair and the considerations of the responses were adequate.
4. The Secretary of State had not failed to assess the impact of the policy on persons with protected characteristics under section 49 of the Equality Act 2010 - the Equality Statement prepared considered the potential for adverse impacts on protected groups and accordingly complied with section 49 of the Act. The fact the Statement post-dated the policy did not warrant quashing the decision.

An announcement is now awaited from the Government to ascertain the impact on national policy guidance although the inference certainly is that the small sites exemption from Affordable Housing will now again apply.

Clearly this case is a victory for small developers but concerning for affordable housing providers. It will be interesting to see whether the decision is appealed and brought before the Supreme Court which may indeed be needed to provide clarity and closure on this issue.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.