Town and country planning – Planning policy – Affordable housing – Appellant secretary of state making changes to national policy in respect of planning obligations for affordable housing – Whether policy changes inconsistent with statutory scheme – Whether appellant failing to take account of material considerations – Whether consultation process unfair – Whether appellant failing to comply with public sector equality duty – Appeal allowed
In November 2014, the appellant secretary of state issued a written ministerial statement (WMS) making alterations to national policy on planning obligations for affordable housing. Whereas previous policy had been to require developers to make a contribution to affordable housing, the WMS provided that no such contribution would be required for small developments of 10 units or less, with a maximum combined gross floor space of 1,000m² (10,764 sq ft). The change in policy was motivated by concerns that affordable housing levies and tariff-based contributions were impacting adversely on small-scale housing development and that the construction of new housing had fallen significantly below national housing needs. The National Planning Practice Guidance (NPPG) was amended, with subsequent revisions, so as to implement the WMS.
In February 2015, the appellant issued a statement that, after carrying out an equalities impact assessment, he had concluded that the policy of the WMS was compatible with the public sector equality duty in section 149 of the Equalities Act 2010 and should be maintained.
The respondent local planning authorities brought judicial review proceedings to challenge the lawfulness of the WMS. Allowing the claim, the judge held that the policy of the WMS was inconsistent with the statutory planning regime, in particular the provisions of section 38(6) of the Planning and Compulsory Purchase Act 2004 giving priority to the policies in adopted development plans, since it purported to confer exemptions in each and every case where affordable housing requirements in an adopted local plan policy were inconsistent with national thresholds. He held that a policy formulated in that way was improper since it purported, in effect, to override relevant policies in the statutory development plan in so far as they were inconsistent with the national policy.
The judge further held that the appellant had erred in: (i) failing to take into account material considerations, including the adverse effects of the policy on land supply for affordable housing; (ii) carrying out inadequate consultation in relation to the policy; and (iii) failing to comply with the public sector equality duty in section 149 of the 2010 Act. He granted declaratory relief accordingly: see [2015] EWHC 2222; [2015] PLSCS 242. The appellant appealed.
Held: The appeal was allowed.
(1) As a matter of principle, the exercise of public discretionary power required the decision-maker to bring his mind to bear on every case; he could not blindly follow a pre-existing policy without considering anything said to persuade him that the case in hand was an exception: British Oxygen Co Ltd v Minister of Technology [1971] AC 610 applied. That principle, which prohibited decision-makers from fettering their own discretion, was a general principle of the common law and was critical to lawful public decision-making, since without it decisions would be liable to be unfair or unreasonable. The rule against fettering discretion was embodied in section 38(6) of the 2004 Act, and in section 70(2) of the Town and Country Planning Act 1990, which showed that neither the development plan nor any other policy relevant to the matter in hand was to be applied rigidly or exclusively by the decision-maker. While the development plan was to be the starting-point for the decision-maker, and in that sense there was a “presumption” that it was to be followed, there was no requirement to attach greater weight to it than to other considerations. Moreover, policy might overtake a development plan and render it out of date: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1477; [1997] PLSCS 267 applied.
(3) However, there was a further principle that a policy-maker, most notably central government, was entitled to express a policy in unqualified terms and was not required to spell out the legal fact that the application of the policy had to allow for the possibility of exceptions. It was unnecessary to require every policy statement to include a reminder that the policy was to be applied consistently with the rule against fettering discretion, or, in the planning context, consistently with section 38(6) of the 2004 Act or section 70(2) of the 1990 Act. While a policy could include exceptions, the law did not demand that a public policy should incorporate exceptions as part of itself. The rule against fettering discretion, and the provisions of section 38(6) and section 70(2), were not a part of any administrative policy but were requirements that the law imposes on the application of such policy. It followed that an articulation of planning policy in unqualified or absolute terms was not repugnant to the proper operation of those provisions. Nonetheless, the basic tests of reason and good faith applied, and where, as here, the policy was elaborated in a statutory context, the policy-maker could not promote an outcome that contradicted the aims of the statute. The appellant was not entitled to seek by his policy to countermand or frustrate the effective operation of section 38(6) and section 70(2): Cala Homes (South) Ltd v Secretary of State (No 2) [2011] EWCA Civ 639; [2011] 2 EGLR 75; [2011] 34 EG 68 applied.
(3) Applying those principles, the policy promulgated in the WMS was not unlawful. The WMS did not on its face seek to countermand or frustrate the effective operation of section 38(6) of the 2004 Act or section 70(2) of the 1990 Act. It merely expressed the appellant’s substantive planning policy in unqualified, though trenchant, terms. The policy set out in the WMS was not to be faulted on the ground that it did not use language indicating that it was not to be applied in a blanket fashion, or that its place in the statutory scheme of things was as a material consideration for the purposes of section 38(6) of the 2004 Act or section 70(2) of the 1990 Act, and no more. The judge below had erred in conflating what the policy said with how it could lawfully be deployed.
(4) The appellant could not be criticised for any failure to take into account material considerations. While the statutory planning context constrained the appellant to some extent, and he could not introduce into planning policy matters that were not proper planning considerations at all, his policy choices were otherwise a matter for him. He might decide to cover a small, or a larger, part of the territory potentially in question, addressing few or many issues. The planning legislation established a framework for the making of planning decisions; it did not lay down merits criteria for planning policy, or establish what the policy-maker should or should not regard as relevant to the exercise of policy-making. In those circumstances, the appellant was not obliged to go further than he did into the specifics.
(5) The appellant’s consultation was not legally flawed. Contrary to the finding of the judge below, he had not failed to give sufficient reasons for his proposal to enable intelligent consideration and responses to be given. The appellant had acknowledged that the real driver for the change in policy was the view that affordable housing requirements imposed a “disproportionate burden” on small sites. The wording of the consultation paper had not thereby misled consultees into thinking that he was concerned only with viability issues rather than with issues of stalled development and cash flow problems caused to small developers by reason of having to make up-front payments. The relevant consultation question was posed in the context of broader-based impacts of the existing section 106 contribution regime on small-scale building development. The fact that local planning authorities focused in their responses on viability issues in their respondent was a reflection of particular concerns that they wished to address. Nor had the appellant failed to give appropriate consideration was given to the consultation responses. That obligation did not translate into an obligation to adopt the submissions made by respondents; the appellant was entitled to consider the whole range of responses made to him, together with all relevant information, and to form his own conclusion independently of the views of any particular section of consultees, or indeed the views of his own advisers.
(6) Although the WMS was not accompanied by any equality impact assessment for the purposes of the public sector equality duty in section 149 of the Equality Act 2010, that did not justify quashing the WMS. While proper and timely compliance with the public sector equality duty was important, there was no point in making a quashing order in circumstances where a sufficient assessment had been carried out subsequently. In the instant case, the relevant requirements were met by the formal equality statement produced by the appellant in February 2015. The statement demonstrated a consideration of the potential for adverse impacts on protected groups but sought to place that in context by reference to other policies impacting on affordable housing. It was legitimate to have regard to other policies in the field of affordable housing; to assess the new policy without reference to other policies that were germane to it would be to adopt too narrow an approach. The requirement to pay due regard to equality impact under section 149 did not require a precise mathematical exercise to be carried out in relation to particular affected groups or, for example, urban areas as opposed to rural areas. While the appellant’s equality statement took a relatively broad-brush approach, it complied with the terms of section 149. In the circumstances, where bad faith was not suggested, and where the equality statement had been found to be adequate, considerations of a purely disciplinary nature were insufficient to warrant the quashing of the decision.
Richard Drabble QC and David Blundell (instructed by the Treasury Solicitor) appeared for the appellant; David Forsdick QC and Alistair Mills (instructed by the legal department of West Berkshire District Council) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript: R (on the application of West Berkshire District Council and another) v Secretary of State for Communities and Local Governments
