National planning policy – Statutory scheme – Local authorities – Defendant secretary of state making changes to national policy in respect of planning obligations for affordable housing – Claimants seeking to quash decisions – Whether policy changes inconsistent with statutory scheme – Whether consultation process being unfair – Whether defendant failing to take account of material considerations – Whether defendant failing to comply with public sector equality duty – Application granted
The national planning policy framework (NPPF) published on 27 March 2012 set out the government’s planning policies for England and how they were expected to be applied. It provided a framework within which local people and their accountable councils could produce their own distinctive local and neighbourhood plans, which reflected the needs and priorities of their communities.
Section 19(2)(a) of the Planning and Compulsory Purchase Act 2004 required that in the preparation of a development plan document, such as a local plan, a local authority had to have regard to national policies and advice contained in guidance issued by the secretary of state.
The claimant local authorities applied to the court for an order quashing the decisions of the defendant secretary of state, on 28 November 2014 and 10 February 2015, to make alterations to national policy in respect of planning obligations for affordable housing and social infrastructure contributions and subsequently to maintain those policies following the completion of an equalities impact assessment (EqIA). The policy changes were contained in a ministerial statement and accompanied by amendments to the national planning practice guidance (NPPG). No alterations were made to the NPPF.
The claimants alleged that: (i) the national policy was inconsistent with the statutory scheme and its purpose within the framework of the Town and Country Planning Act 1990 and the 2004 Act; (ii) the consultation process carried out by the defendant had been unfair; (iii) the defendant had failed to take into account material considerations; and (iv) in deciding to adopt the new national policy, the defendant had failed to comply with the public sector equality duty in section 149 of the Equality Act 2010.
The application was granted.
(1) The national policy changes were inconsistent with certain core principles of the statutory scheme. Section 38(6) of 2004 Act gave priority to the policies in adopted development plans. Those policies were formulated by reference to a local evidence base and satisfied the requirements of the statutory process leading to adoption. The new national policy was inconsistent with the statutory scheme because its aim, and the language chosen, purported to confer exemptions in each and every case where affordable housing requirements in an adopted local plan policy were inconsistent with national thresholds. A policy formulated in that way was improper because, in effect, it purported to override relevant policies in the statutory development plan in so far as they we inconsistent with the national policy. To that extent the national policy ignored or circumvented the presumption in favour of the development plan policies in section 38(6) and the need to carry out the weighing process: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 73; [2001] 2 PLR 76 and Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2011] EWHC 97 (Admin); [2011] PLSCS 45 applied.
Section 17(3) of the 2004 Act required each local authority to set out their policies on affordable housing for their area in their local development documents. In carrying out that function they had to have regard to national policies and advice contained on guidance issued by the defendant but there was no statutory requirement that their policies had to be in conformity, or even general conformity, with national policy. Because the new national policy purported to override local plan policies inconsistent therewith, it was inconsistent with the statutory scheme for the formulation and adoption of such policies. In so far as the local plan policies of a particular local authority were thought to be unsatisfactory, the defendant had appropriate default powers under the 2004 Act to achieve alterations to local plans, subject to independent scrutiny through public examination, but those powers had not been used. Therefore, the purported effect of the new national policy on exemptions from affordable housing contributions was incompatible with the statutory framework and unlawful: Laker Airways Ltd v Department of Trade [1977] QB 643 and Cala Homes South Ltd v Secretary of State for Communities and Local Government [2011] EWCA Civ 639; [2011] 2 EGLR 75 applied.
(2) Complaints about a non-statutory consultation process depended on the requirements of procedural fairness, which were fact and context sensitive. The test was whether the process had been so unfair as to be unlawful. Sufficient information to enable an intelligent response required the consultee to know in sufficient detail not only what the proposal was, but also the factors likely to be of substantial importance to the decision, or the basis upon which the decision was likely to be taken. The impact of a decision was a material factor in deciding what fairness required in a particular case. The question whether there had been procedural unfairness was for the court to determine: R (on the application of the London Criminal Courts Solicitors Association) v Lord Chancellor [2014] EWHC 3020 (Admin) applied.
In the present case the claimants had not had the opportunity to make representations on material which was known to the defendant and central to the formulation of his new national policy, where that policy was going to have a substantial effect on the discharge of local planning authorities’ planning functions. The process followed by the defendant was plainly unfair.
(3) The defendant had failed to take into account considerations which were obviously material. The main benefits and disbenefits of the proposed exemptions from affordable housing requirements were obviously material to the defendant’s decision to adopt the new policy. The decision to adopt the policy had to have regard to the perceived advantages of the proposed policy. Such advantage could not properly be taken into account without also addressing any adverse consequences which were obviously material. Adverse effects on land supply were equally and obviously relevant to a proper weighing of the net benefits of the proposed policy. There was no evidence to suggest that that exercise had been carried out before the adoption of the policy in November 2014. At the very least, the adverse consequences upon land supply for affordable housing had to be reflected in the final decision, even if only in a qualitative manner: Re Findlay [1985] AC 318 and R (on the application of Luton Borough Council) v Central Bedfordshire Council [2015] EWCA Civ 537 considered.
(4) It was not for the court to determine whether appropriate weight had been given to the public sector equality duty (PSED) or the matters taken into account. However, on the evidence, the exercise carried out by the defendant did not comply with the requirements of section 149 of the 2010 Act. Ministers had not taken adequate steps to obtain relevant information in order to comply with the PSED; and/or the duty had not been fulfilled in substance and with rigour; and/or ministers had not assessed the extent and risk of certain adverse impacts upon persons with protected characteristics and falling within section 149(1); and the exercise had not been carried out with a sufficiently open mind.
(5) Parliamentary privilege did not prevent the court from making a quashing order in respect of relevant parts of the NPPG, the defendant’s decision to adopt the new policy by way of written ministerial statement and the defendant’s decision to maintain that decision. Nor did it prevent the grant of a declaration by the court that the policies in the written ministerial statement were not to be treated as a material consideration in development management and development plan procedures and decisions or in the exercise of powers and duties under the Planning Acts more generally. The claimants had stated that such declarations would provide them with sufficient relief in relation to the unlawfulness of the policy promulgated by means of the written ministerial statement and that they did not need to ask the court to consider quashing the statement itself.
David Forsdick QC and Alistair Mills (instructed by West Berkshire Council Legal Service) appeared for the claimants; Richard Drabble QC and David Blundell (instructed by the Treasury Solicitor) appeared for the defendant.
Eileen O’Grady, barrister
