Planning policy – Legitimate expectation – New planning regime introduced by Planning and Compulsory Purchase Act 2004 – Previous structure plan policies expiring after three years unless saved by direction of defendant secretary of state – Claimants seeking to have housing policies saved – Whether legitimate expectation that policies would continue in force – Claim dismissed
The claimants had interests in land in South Staffordshire; the third claimant was involved in promoting a site to the north of Lichfield for a new residential settlement. Prior to the introduction of a new planning regime by the Planning and Compulsory Purchase Act 2004, planning policy for the region had been contained in a structure plan that provided for 51,800 new dwellings to be created over the plan period from 1996 to 2011, broken down into specific allocations for the various districts and boroughs. A three-year transitional period came into effect following the introduction of the 2004 Act. During this period, the development plan consisted of a regional spatial strategy (RSS), introduced pursuant to the 2004 Act, and the pre-existing structure plan. The RSS for the West Midlands area set out an annual average rate of housing provision but did not allot allocations at district or borough level. It was accompanied by a letter from the minister for housing and planning to the West Midlands regional assembly (the Hill letter), which stated that further work on the RSS would be required in order to decide the distribution of housing to functional subregions. The letter also stated that, until the work was completed, the allocation of housing to the districts should be made on the basis of the then structure plan proportions to 2011 “in the absence of better information”. In 2007, following consultation, a draft was produced for an RSS review, which dealt with housing allocation and set out various options (the options document).
In March 2007, following consultation with the relevant county councils, the regional assembly submitted an application to the defendant, under para 1(3) of Schedule 8 to the 2004 Act, for a direction that certain policies in the structure plan should be saved beyond the transitional period; these did not include the policies dealing with housing allocation. The third claimant made its own application to save the housing allocation policies.
Refusing the claimants’ application, the defendant indicated that the distribution of housing as set out in the policies did not conform with the RSS strategy and that the RSS and the options document contained sufficient information to guide the distribution of housing development pending the outcome of the RSS review. The claimants applied to quash that decision on the ground that it breached their legitimate expectation, created by the Hill letter, that housing allocation would accord with the structure plan proportions up to 2011. They further contended that the decision would create a policy vacuum, contrary to the defendant’s own published policy, and that the her reasons were inadequate.
Held: The claim was dismissed.
(1) The claimants had no legitimate expectation that housing allocation would continue to be made on the basis of the structure plan proportions to 2011. Although legitimate expectations could arise in respect of planning policies, it was well known that even the most formally published policy could change. Accordingly, the beneficiary of a policy could have no reasonable expectation that that policy would remain unchanged. At most, the beneficiary could legitimately expect that any change would accord with established procedure or, in the absence of a legitimate expectation, in a fair manner. Any such procedural expectation on the part of the claimants had been met.
Further, the Hill letter was not a statutory document but merely practical advice, and should not have been read in a legalistic way. In saying that the structure plan housing allocations should be applied until the work on the RSS review had been completed, the word “completed” did not refer to the final publication of the revised RSS. From the point of view of a town planner, the work could reasonably be viewed as sufficiently complete to act upon before then.
If there had been any legitimate expectation as to the retention of the policies, a question would then have arisen of whether denial of that expectation was proportionate to a legitimate aim pursued by the defendant. It was more likely to be proportionate where the policy in question was on a “macro”, generalised level, involving wider political issues; although the policies in question involved narrow technical issues regarding housing allocation and were not of national importance, they were important on a local level and had a wide-ranging effect in the region. The defendant’s decision not to save the policies was not disproportionate, especially given that all the district councils affected agreed that the options document was the better basis to work on.
Even though the work embodied in the options document was still at an embryonic stage and the options were likely to change before the final outcome of the RSS review, the defendant had still reasonably considered them to represent “better information” to work with than the structure plan policies and to be sufficient to guide housing allocation in the meantime. It was a matter of planning judgment for the defendant as to what weight should be given to any given policy, and she had been entitled to give more weight to the figures in the options document, although provisional, than to structure plan policies that had been found not conform with the RSS. The defendant had reasonably concluded that a policy vacuum would not arise, and had given adequate reasons for her decision not to save the housing allocation policies.
Ian Dove QC and Jenny Wigley (instructed by Hammonds, of Birmingham) appeared for the claimants; John Litton (instructed by Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
