Claimant local planning authority proposing to adopt local plan – Policy in plan requiring development on sites of 0.1 ha or more to make provision for affordable housing – Secretary of State directing that claimant modify policy and increase threshold to 0.5 ha – Whether Secretary of State acting perversely – Whether fettering his discretion – Section 43(4) of the Town and Country Planning Act 1990 – Circular 6/98 – Claim dismissed
Spelthorne Borough Council (the claimants) proposed to include policy H6 in their local plan, which provided that housing development upon sites of 0.1 ha or above would be required to make provision for affordable housing. Guidance contained in Circular 6/98 provided that the site size threshold for affordable housing was 1 ha or more, except for inner London, where it dropped to 0.5 ha. However, a lower threshold could be adopted where local circumstances justified it. The claimants took the view that as undeveloped land suitable for building was severely fragmented in the borough and occurred mostly in small parcels, it was necessary to have a threshold of 0.1 ha in order to meet the required provision of affordable housing. An inquiry into objections to the local plan was held.
In his report, the inspector concluded, inter alia, that the claimants had not made out a robust case for a lower site size threshold because they had failed to consider provision for affordable housing from three other sources: (i) vacant housing units; (ii) conversion of larger houses; and (iii) office conversions. The claimants did not modify policy H6 and gave notice of their intention to adopt the local plan. The defendant Secretary of State agreed with the inspector’s findings. He made a direction under section 43(4) of the Town and Country Planning Act 1990, requiring the claimants to modify policy H6 by increasing the threshold to 0.5 ha to reflect the guidance in the circular. The claimants sought to quash that direction on the grounds that: (i) the Secretary of State had acted perversely, particularly in adopting the inspector’s flawed reasoning that the claimants had failed to make out a case for special treatment; and (ii) the Secretary of State had fettered his discretion by requiring strict adherence to the guidance in Circular 6/98, thereby failing to consider whether local constraints justified a site size of 0.1 ha; or, alternatively (iii) the reasons for his direction were unintelligible.
Held: The claim was dismissed.
The inspector was entitled to bring to bear his planning judgment and experience in assessing the likely contribution of affordable housing supply from those other sources. His conclusion on that aspect was not perverse, nor was the Secretary of State’s agreement with it. The wording of section 43(4) was very wide. It gave the Secretary of State a broad power to intervene in the planning process if he considered it was appropriate. The judgment on the planning merits was for the Secretary of State, not for the local planning authority. It could not be said that he had acted perversely. The Secretary of State clearly considered whether local circumstances justified a departure from the guidance and concluded that they did not. His reasons could not be said to be ambiguous or unintelligible.
Matthew Horton QC and Mary Macpherson (instructed by Richard Lewis, of Staines) appeared for the claimants; Philip Sales (instructed by the Treasury Solicitor) appeared for the defendant.
Sarah Addenbrooke, barrister
