Jenny Wigley draws attention to a landmark Judgment which covers issues such as the rule on policy consistency with the statutory scheme, fair and adequate consultation and the public sector equality duty.  The practical implications are of immediate effect to developers’ negotiations on small scale and brownfield sites.

In a wide ranging judgment of Holgate J handed down on 31 July, the High Court has quashed the policy changes announced in Parliament on 28 November 2014 which directed decision makers not to impose affordable housing contributions or other tariff style infrastructure contributions on housing proposals for ten dwellings or fewer.  The vacant building credit policy, in which affordable housing requirements would be reduced according to the extent to which a housing proposal was to involve the re-use or redevelopment of vacant buildings has also been quashed.

Allowing the Claim by West Berkshire District Council and Reading Borough Council, the Court has quashed (i) the relevant parts of the NPPG, (ii) the Secretary of State’s decision to adopt the new policy by way of Written Ministerial Statement and (iii) the Secretary of State’s decision on 10 February 2015 to maintain the policy.  The Court also granted a declaration that the policies in the Ministerial Statement must not be treated as a material consideration in development management and development plan procedures and decisions or in the exercise of powers and duties under the Planning Acts more generally.  Because the Claimant ultimately agreed that this relief would be adequate, the decision fell short of quashing the Ministerial Statement itself because of the interesting and difficult questions that were be raised by a late objection on the basis of constitutional problems relating to Parliamentary privilege.  Those interesting issues “will have to await another case”.

The Claim was allowed on a number of grounds and sub-grounds including:

–       The policy, which was intended to create blanket exemptions, to have immediate effect and to override local plan policies was inconsistent with the statutory scheme;

–       The consultation process had been unfair and unlawful for two main reasons:

(i)             It gave insufficient reasons for the policy proposal so as to allow intelligent consideration and responses (it failed to communicate that the motivation for the policy went beyond viability considerations);

(ii)           It failed to take the product of the consultation (i.e substantive points raised by the responses) conscientiously into account.

–       There was a failure to take into account “obviously material” considerations when promulgating the policy, including the full implications for the supply of affordable housing land;

–       There was a breach of the public sector equality duty under section 149 of the Equality Act 2010.  The impacts on disabled persons and ethnic minorities who disproportionately rely on affordable housing had not been considered when the policy was announced and this had not been cured by a less than rigorous post decision assessment; and

–       Irrationality

Following the Judgment, the Government has announced that the relevant paragraphs of the NPPG[1] will be removed and this is now reflected on the NPPG website.  Accordingly, with immediate effect, developers will be unable to rely on those paragraphs in negotiations as to affordable housing and tariff style infrastructure contributions.  The vacant building credit will also no longer be applicable.

The full Judgment (R (oao West Berkshire District Council and Reading Borough Council v. Secretary of State for Communities and Local Government) [2015] EWHC 2222 (Admin)) can be downloaded here.

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[1] Paras 012 – 023 of the Planning Obligations section