Everyone knows that planning has a strong political dimension to it. However, it is not without its limits and two court decisions this year must call into question whether ministers fully appreciate or acknowledge the limits to their powers. Both decisions attracted significant media coverage at the time because of their impact and importance.
West Berkshire
In West Berkshire District Council and another v Secretary of State for Communities and Local Government [2015] EWHC 2222 (Admin); [2015] PLSCS 242, Holgate J was faced with a challenge by two local planning authorities to the secretary of state’s decisions to make alterations to national policy in respect of planning obligations for affordable housing and infrastructure by way of a written ministerial statement in the House of Commons and a subsequent decision to maintain those policy changes following completion of an equalities impact assessment. These decisions excluded small developments of 10 units or less from affordable housing levies and created the vacant building credit. As has been widely reported – see EG, 8 August 2015, p23 – Holgate J ruled comprehensively that the decisions were unlawful and quashed them.
The decision of Holgate J is long, detailed and carefully considered. It provides a fascinating insight into the workings of the planning system and is worth studying for that reason alone. At the heart of this dispute was the relationship between the policy as promulgated by the minister and the underlying statutory framework for local plans as set out in Part 2 of the Planning and Compulsory Purchase Act 2004. This particular policy change had caused considerable adverse consequences amongst local planning authorities in discharging their affordable housing responsibilities.
In a nutshell, Holgate J ruled that, for a number of specific reasons, the national policy changes introduced on 28 November 2014 were inconsistent with certain core principles of the statutory scheme. He also held that the consultation process had been unfair and that the minister had failed to take into account a number of “obviously” material considerations. It was also common ground that the public sector equality duty had to be satisfied by the minister when adopting the policies under challenge and Holgate J ruled that the equality statement of 5 February 2015 failed to satisfy that duty. He also ruled that the vacant building credit, which the judgment notes was introduced against the advice of officials, also fell foul of the public sector equality duty and also was unlawful for the same reasons as the challenge to the small developments threshold policy.
Not the only example
What is perhaps most worrying about this decision is that this is not the first time that the secretary of state has acted unlawfully. Readers will remember that shortly after coming to power in the coalition government, the secretary of state ran into problems with the way in which he sought to abolish the regional planning system. In R (on the application of Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin); [2011] PLSCS 288 Sales J had to remind the secretary of state that he needed Parliamentary approval to revoke the legislation that introduced the regional planning system (27 November 2010, p130).
Apparently that brush with the courts did not temper the ambition of politicians. Earlier this year, in R (on the application of Moore and another) v Secretary of State for Communities and Local Government (Equality and Human Rights Commission Intervening) [2015] EWHC 44 (Admin); [2015] PLSCS 36, Gilbart J ruled that the secretary of state had acted unlawfully in relation to a ministerial policy towards the handling of gypsy and traveller planning appeals. The judgment contained useful guidance on indirect discrimination. As the judge pointed out, the relevant test is not whether the provision, criterion or practice was intended to be discriminatory but whether it is discriminatory is its effect, not its purpose.
At the end of his lengthy judgment Gilbart J concluded that, whilst the challenges mounted on issues of bias, irrationality and abuse of power failed, the challenges based on the Equality Act 2010 and Article 6 of the European Convention on Human Rights succeeded. The crucial part of his judgment must be his observation that:
“Although the issue of unlawful discrimination was put before the minister by his officials, no attempt was made by the minister to follow the steps required of him by statute, nor was the regard required of him by s149 of the Equality Act 2010 had to the matters set out there.”
It would seem that in both cases this year, the politicians ignored the sage advice of officials and ploughed on regardless. In reality it is impossible to divorce the planning system from the political system. The key question must be whether any political decision affecting the planning system is made squarely within the confines of the law.
So the message from these cases is clear: ministers have considerable political power within the planning system but it is not limitless.
Martin Edwards is a barrister at Cornerstone Barristers
