In R (McCarthy and Stone Retirement Lifestyles Ltd & Ors) v Greater London Authority [2018] EWHC 1202 (Admin) a quartet of retirement living developers established that part of the mayor of London’s 2017 Affordable Housing and Viability Supplementary Planning Guidance (SPG) is unlawful.
The mayor may produce a spatial development strategy under Section 334 Greater London Authority Act 1999, but also has a power (Section 30) to “do anything which he considers will further one or more of the GLA’s principal purposes”.
Adopted London Plan policy identifies the need to consider “contingent obligations” (defined as re-appraisal mechanisms for schemes which “in whole or in part … are likely to many years to implement”). The SPG purports to set a “threshold” (35%) for affordable provision to open up a “fast track” for applicants – under which no viability information is needed, other than a viability review if development does not progress quickly. The SPG seeks to apply an alternative, “deliberately slow track”, viability-tested route in all below-threshold cases.
Ouseley, J, rejected the claim that the SPG (if policy) could only be produced in the development plan, following the procedure in Section 335 GLA 1999. Section 30 allows policy to be promoted outside the London Plan albeit as “merely a material consideration”, not attracting the force of Section 38(6) TCPA 1990.
Adopting supplementary “guidance” in conflict with the development plan was, however, a misdirection about “the meaning and affect of either the plan or the SPG” because “it is inherent in the concept of SPG that it purports to supplement and not to contradict development plan policy”. London Plan policy did not limit viability reviews to phased development, but the catch-all SPG threshold designed to “create a stick to make the 35 per cent threshold carrot more appetising”, was “quite inconsistent” with the policy’s focus on the time that development would take. The failure to have regard to that justified a declaration that that the catch-all wording was unlawful.
The judgment is clear that decision makers may nevertheless consider both the 35% threshold and the use of a review on a case by case basis. They could “decide to adopt a different approach on any individual site” and “the London plan does not require a viability appraisal for any sites”. The judgment also confirms that the mayor could have adopted the threshold approach as a freestanding stop-gap policy, regardless of inconsistency with the development plan or lack of examination. It would still remain a mere material consideration regardless of the mayor’s “Nelsonian expectations” of observance.
The framework for local planning authority policies is very different. There, the core question of whether policy on the hoof violates the requirement for substantive Local Plan documents to pass through examination procedures remains alive and kicking (R (Skipton Properties Ltd) v Craven District Council [2017] EEWHC 534 (Admin)).
Roy Pinnock is a partner in the planning and public law team at Dentons
