Defendant local planning authority adopting supplementary planning guidance on social housing – Policies differing from those in local plan – Claimant objecting – Whether introduction of policy in supplementary planning guidance unlawful – Whether local authority duty bound to proceed by way of local plan review – Claim dismissed
In 1999 the defendant council began to review their adopted local plan, which was intended to include new policies on social housing. They decided that, in the meantime, they would proceed by using supplementary planning guidance (SPG) on social housing, which would be used in development control decisions. The SPG was adopted, but contained policies that differed from those in the local plan.
The claimant developer sought judicial review of the defendants’ decision to adopt revised social housing policies in the form of SPG, rather than by a statutory review of the local plan. The claimant submitted, inter alia, that the defendants’ decision was unlawful, and that they were duty-bound to proceed by way of a local plan review. It submitted that the very use of SPG, rather than a local plan review, was contrary to those parts of the guidance in PPG 12 that supported a plan-led system. PPG 12 provided that SPG was intended only to supplement specific policies in a local plan, and must, in any event, be consistent with the local plan. It also advised that SPGs should not be used to avoid subjecting policies and proposals that should be in the plan to public scrutiny. The claimant further submitted that sections 36(2) and 39(1) of the Town and Country Planning Act 1990 dictated that the policies contained in the SPG should have been carried out by way of a local plan review.
Held: The claim was dismissed.
The defendants’ power to alter or replace the local plan could not be transmuted into a negative obligation to produce nothing else. The defendants’ duty was to include policies in the local plan, and there was no duty upon them never to produce any other policy documents. Therefore, when a plan had been adopted, and a local authority had adopted new policies, it was not a breach of their duty – the authority merely had policies to which section 54A did not apply, and to which the Secretary of State might attach less weight. The statutory provisions did not support the contention that a local planning authority could not change their policies, no matter how pressing or urgent, other than by way of a local plan review. That would impose an unlawful restraint upon an authority: Westminster City Council v Great Portland Estates plc [1985] AC 661 and Kingsley v Secretary of State for the Environment, Transport and the Regions (2001) 82 P&CR 9 considered.
David Holgate QC (instructed by Masons) appeared for the claimant; Robert McCraken (instructed by the solicitor to Oxford City Council) appeared for the defendants.
Sarah Addenbrooke, barrister
