Town and country planning – Development plan — Supplementary planning guidance (SPG) – Respondent mayor issuing SPG on affordable housing – Claimant developers applying for judicial review – Whether SPG unlawful as constituting policy only to be in London Plan – Whether SPG inconsistent with London Plan by introducing late stage review to single phase sites – Application granted in part
The Supplementary Planning Guidance (Homes for Londoners: Affordable Housing and Viability Supplementary Guidance 2017) (SPG) was issued by the defendant mayor relating to policies in the London Plan. It concerned how affordable housing developments or contributions in lieu should be negotiated on the grant of planning permission for housing developments. The four claimants were developers of specialist housing for the elderly which said that the new SPG had a very damaging impact on their ability to acquire and develop sites. Its effects began when the draft was published after the election of the defendant who was concerned that the policies in the London Plan were not being used as effectively as they could be to produce affordable housing. The claimants applied for judicial review contending that the SPG was unlawful because, among other things, it constituted policy which should only be in the London Plan, which was currently being revised, and was inconsistent with that plan.
The claimants submitted that the SPG contained policy which could only be produced in the spatial strategy, i.e. the development plan (under section 334 of the Greater London Authority Act 1999) and following the procedure in section 335 of the 1999 Act. The particular aspects of the SPG which were general policies in respect of the development and use of land in Greater London were the 35% threshold, the fast-track and the viability tested route, with three viability appraisals (initial, early stage and late stage) and the deliberately slow-track. The claimants supported their submission by reference to the draft London Plan, where the defendant now treated those aspects as some of his proposed general policies for the spatial strategy for Greater London.
Held: The application was granted in part.
(1) The line between guidance and policy was not a bright line, particularly when it came to an assessment of the level of detail appropriate for a plan. There was nothing wrong with one planning authority taking the view that, for it, an issue required the force of section 38(6) of the 2004 Act to be applied, and so its policy was promulgated as a development plan policy, while another authority or its successor, could decide that precisely the same point was best left for guidance. Though it was for the court to decide whether a document constituted a policy which must or must not be in the spatial strategy, section 334 of the 1999 Act left room for the court to respect the plan-maker’s judgment on what was to receive the weight of the development plan, or was too detailed for a spatial strategy, where that was the basis for the decision. Such an approach to the distinction between policy and guidance, which was lawful, was not readily caught by a judicially determined hard and fast line as to what fell within section 334. The basis upon which a ruling was made, which turned on the appropriateness of the level of detail for inclusion in a development plan, or the desirability of that level having the force of section 38(6) behind it, had to respect the legitimacy of differing plan-makers’ judgments about where that line should be drawn, and recognise the potential role of the inspector, in setting appropriate levels of detail for a statutory development plan: Great Portland Estates plc v Westminster City Council [1985] AC 661, R (on the application of Pye) v Oxford City Council [2001] EWHC 870 (Admin), R (on the application of Wakil) v Hammersmith & Fulham London Borough Council [2012] EWHC 1411 (QB) and R (on the application of Skipton Properties Ltd) v Craven District Council [2017] EWHC 534 (Admin) considered.
Applying section 334, the aspects of the SPG complained of by the claimant were among the defendant’s “general policies” in respect of development and use of land, at least for the time being. They had been made policy so that the weight of section 38(6) was to be brought to bear on them. On the evidence, the SPG was issued as SPG so that the change of approach which the defendant wanted to bring about, could be implemented as soon as possible without waiting for its possible appearance in the more wide-ranging review of the London Plan. There was now no distinction in that respect between the status of the “guidance” in this SPG and the “policy” in the draft London Plan.
(2) The definition of “contingent obligations” in the London Plan itself focussed on the length of time taken to implement development. The problem of development which in whole or in part was “likely to take many years to implement” was not confined to phased development, nor necessarily always present in a phased development. It would be too legalistic a reading to say that the definition of “contingent obligations” was confined to phased developments, and that the delayed start to a single phase development, however large, was excluded from re-appraisal. Reading the plan in that light, re-appraisal could not be confined to multi-phase schemes. The SPG was deliberately different and was not consistent with the London Plan and the definition of “contingent obligation”. The SPG required an early and a late stage review on every site yielding affordable housing below 35% on-site, in addition to the initial appraisal, regardless of the time development was anticipated to take or in fact had taken. That was contrary to the definition of “contingent obligation” which envisaged re-appraisal only when related to the likely length of time a development might take, or against the risk of a delayed start. Its language referred to schemes in whole or part “which are likely to take many years to implement” and the need to address “economic uncertainties which may arise over the lifetime of a proposal”. That was inconsistent with re-appraisals regardless of the actual or expected duration of implementation. Moreover, the SPG was not directed only at timescale or economic uncertainties. It created a stick to make the 35% threshold carrot more appetising. Hence, it was to apply to all sites. It was not consistent with an obligation to consider “the specific circumstances of individual sites”. Therefore, the SPG was inconsistent with the London Plan and in that respect was unlawful.
Rupert Warren QC (instructed by Lester Aldridge LLP) appeared for the claimants; Paul Brown QC (instructed by Transport for London) appeared for the defendant.
Eileen O’Grady, barrister
