New policy introduced by the government, which excluded small developments from affordable housing levies, has been quashed by the High Court.
Holgate J today upheld a challenge by local authorities West Berkshire District Council and Reading Borough Council to the policy changes made in a ministerial statement last November, which the judge said he had been told had “profound consequences” for planning authorities across the country in discharging their responsibilities under the planning system for the provision of affordable housing.
He said that the authorities complained that the policy change would exempt some smaller sites from any obligation to provide or contribute financially towards affordable housing, resulting in a windfall for landowners or developers, as well as reducing overall affordable housing provision throughout the UK.
The quashed policy excluded developments of 10 units or 1,000 square metres or less from affordable housing levies and tariff based contributions, with a lower threshold of five units in rural areas, national parks and areas of outstanding natural beauty.
It also provided that, where a vacant building is brought back into use, or demolished for redevelopment, local authorities will provide a “credit” for that floorspace to be set against affordable housing contributions.
The judge said that he reached the “firm conclusion” that the purported effect of the new national policy on exemptions from affordable housing contributions is “incompatible” with the statutory framework of the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004, and is therefore “unlawful”.
He said: “The purpose of ministers in their new national policy was to create exemptions from affordable house requirements by introducing blanket thresholds, irrespective of (a) whether those thresholds conflict with adopted local plan policies and (b) the weight to be attached to a specific local plan policy. To put it at its lowest, that purpose was not ‘calculated to promote the policy of the legislation’.”
In addition, he ruled that the consultation process was unfair, that the secretary of state failed to take into account material considerations and failed to comply with the public sector equality duty under the Equality Act 2010.
The judge found that parliamentary privilege did not prevent him making a quashing order in respect of the decision to adopt the new policy and those affected parts of the national planning policy guidance (NPPG). The National Planning Policy Framewok (NPPF) was not altered by the new policy.
He said that ministers were informed in July 2014 that the “10 and below” threshold would result in 21% of affordable housing contributions being exempted – an annual value of £693m based on figures from 2011-2012. But he said that those figures painted only a broad picture for the country as a whole, and that the impact on particular local authorities would vary substantially, such as in Reading where the urban area is tightly bounded by development constraint policies and most development has to take place on brownfield sites.
He said that in Reading’s area, around 25% of housing completions each year take place on sites of 10 or fewer homes.
West Berkshire District Council and anr v Department for Communities and Local Government Planning Court (Holgate J) 31 July 2015
David Forsdick QC and Alistair Mills (instructed by legal service at West Berkshire Council) for the claimants
Richard Drabble QC and David Blundell (instructed by the Treasury Solicitor) for the defendant
