Minister Slapped down!

Planning and Regulatory Lawyer Birmingham Wilkes

WEST BERKSHIRE DISTRICT COUNCIL and READING BOROUGH COUNCIL – v – DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENT

This article was issued in August 2015 and quashed the written ministerial statement as desribed below.  Please note that this case has since been to the court of appeal who overturned the high court judgment and reinstated the written ministerial statement.  If you want further information on how this may affect your development please contact the planning department on 0121 710 5891

The Wilkes Planning and Regulatory team, comments on an important recent judgement of the High Court.

A lengthy judgement was issued by Mr Justice Holgate in the High Court on 31 July last. This will be of interest both to planning authorities and to developers and owners of potential housing sites which may be subject to demands for affordable housing (or financial contributions) in accordance with policies in adopted Local Plans. The judgement is also of more general interest in a number of respects; firstly, on the extent of the Government’s obligation to take account of consultation responses when proposing changes of policy; secondly, on the obligation of a public body to comply with the law on equal opportunities when carrying out a consultation exercise; and thirdly on the constitutional issue of whether a Ministerial Statement made in Parliament could be quashed by the Court (although this issue was not decided).

West Berkshire District Council and Reading Borough Council challenged a Ministerial Statement issued in Parliament on 28 November 2014 by the Minister of State for Housing and Planning, Mr Brandon Lewis. The Statement was issued in response to reports of a decline in small scale house-building, even after the end of the recession. Part of this statement read:

“Due to the disproportionate burden of developer contributions on small scale developers, for sites of 10-units or less, and which have a maximum combined gross floor space of 1,000 square metres, affordable housing and tariff style contributions should not be sought.”

(This policy was expressly stated not to apply to Rural Exception Sites, where a lower threshold would be acceptable.)

The provision of affordable housing, or a contribution in lieu, is generally secured by an obligation under Section 106 of the Town and Country Planning Act 1990.

Prior to this Statement, Reading Council had adopted a policy that required 20% of new housing on developments of 5 – 9 dwellings to be provided as affordable housing and for smaller schemes, a financial contribution to enable 10% to be provided as affordable housing elsewhere in the borough. This followed an independent examination by an Inspector, who concluded that the policy was “sound”, as required by paragraph 182 of the National Planning Policy Framework (“NPPF”). The policy expressly allowed developers to argue for reductions in the affordable housing requirement on grounds of viability (e.g. where there were adverse ground conditions or remediation costs).

West Berkshire Council had a similar policy, which allowed for negotiation on the amount of affordable housing on sites for less than 10 dwellings. This policy had also been tested and found to comply with the test of soundness in the NPPF.

The Government’s aim might be laudable as far as small scale developers were concerned, but as the local authorities in this case pointed out, their policies had already been through the process leading to adoption, and viability had been an important factor in the Inspector holding that the policies were sound. The result of the change in policy would be to reduce the supply of affordable housing without any justification being required on grounds of viability. Mr Justice Holgate criticised the way that the Ministerial Statement was issued. It was silent as to the effect of the new policy on adopted Local Plans, and moreover provided no transitional period for LPAs to review and revise their Local Plan policies. The Judge said that this was “most surprising” in a plan-led system and ruled that it was incompatible with the statutory framework for promoting local plans and determining planning applications.

Mr Justice Holgate also held that in carrying out a consultation process prior to issuing the Ministerial Statement the Department had breached what are known as the “Sedley criteria”, one criterion of which required the Department to take the product of consultation conscientiously into account.   He rejected an argument that the Secretary of State was under no obligation to have regard to considerations raised by consultees when formulating policy.

He also held that the Minister had failed to comply with the public sector equality duty laid down under section 149 of the Equality Act 2010. This requires a public authority in exercising its functions to have due regard to the need to eliminate discrimination and to advance equality of opportunity between persons who share a “relevant characteristic” and those who do not. Relevant characteristics include age and disability as well as other factors. The change of policy could affect vulnerable people in need of social housing. The Department had not taken adequate steps to obtain relevant information and assess the impact of the proposed change in policy on persons with protected characteristics.

The Judge rejected an argument that to quash the Ministerial Statement would be a breach of Parliamentary privilege. The law on that subject had different objectives, namely to avoid interference with free speech and maintain separation of functions between the legislature, the executive and the courts.   Nevertheless, he did not quash the Statement, having decided that it was sufficient from the Claimants’ point of view to make a declaration that the Statement was unlawful.   Hence this constitutional question will have to await another case for a definitive ruling.

Wilkes comments:-

“I understand that the Government are proposing to appeal but the grounds are not yet known. For small developers and landowners the judgement will be a blow because sites for less than 10 houses will still be caught by the affordable housing policies in Local Plans, and an element of social housing will have to be provided or a financial contribution in lieu.”

If you would like to discuss these issues in further detail, please contact Stuart Tym on 0121 710 5891 or via email on stym@wilkes.co.uk