In a comprehensive analysis of the application of public law principles to Government policy, the High Court has ruled that the Government’s policy on (among other things) affordable housing requirements was unlawful.  

Background and judgment

In R (West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government) [2015] EWHC 2222 (Admin), two local planning authorities (LPAs) challenged the decision of the Secretary of State for Communities and Local Government to alter national policy on planning obligations for affordable housing and social infrastructure contributions.  That policy change was made by a written ministerial statement (WMS) in Parliament in November 2014 and confirmed after a subsequent equality impact assessment (EIA) in February 2015 (together, the ‘Decisions’).  The policy shift – the apparent rationale for which was concern over the ‘disproportionate burden’ on small development sites – would have meant that (among other things) housing developments of 10 units or 1,000 square metres, or fewer, would be exempt from affordable housing levies and tariff-based contributions.

The claimants’ challenge succeeded on multiple grounds.  Mr Justice Holgate made a quashing order in respect of: (i) the relevant parts of the National Planning Practice Guidance (NPPG) that had been amended in light of the policy changes; and (ii) the two Decisions.  The Judge also made a declaration that the policies in the WMS must not be treated as a material consideration by LPAs when exercising certain of their planning functions.
The judgment is notable for the wide-ranging grounds upon which the Judge found in the claimants’ favour.  In summary, these were as follows:

• First, Holgate J held that the policy changes were inconsistent with the core statutory planning scheme.  The Judge gave a number of alternative bases for this finding, the essence of which was that the new national policy created blanket exemptions that would override local development plans despite the fact that such plans were, by statute, permitted to differ from the national policy if the circumstances justified it.  The defendant Secretary of State had the power to alter those local plans if he considered them unsatisfactory, but had not availed himself of those powers.
• Secondly, the Government’s consultation process prior to adoption of the new policy had been so unfair as to be unlawful.  The defendant had breached two of the so-called ‘Sedley criteria’ that were recently endorsed by the Supreme Court in R (Moseley) v London Borough of Haringey [2014] UKSC 56.  In particular: (i) he had not explained what the ‘disproportionate burden’ (on small development sites) was, or given any evidence for it, thus preventing LPAs from giving ‘intelligent consideration and responses’ to the proposals; and, moreover, (ii) the Secretary of State had failed conscientiously to consider evidence produced in consultation responses in relation to the impact of the new policy, thus preventing him from ‘[taking] the product of consultation seriously into account’.
• Thirdly, the Secretary of State had failed to take into account considerations that were ‘obviously material’, including that the new policy would reduce the land available for affordable housing.
• Fourthly, the Secretary of State had breached the public sector equality duty (PSED) under section 149 of the Equality Act 2010 (the ‘2010 Act’), despite having conducted an equality impact assessment (albeit after the policy decision had been made).  The judge so concluded for a number of reasons, including because there was no evidence that groups representing people with ‘protected characteristics’ had been consulted.  Nor had the assessment under the PSED been done with sufficient rigour – rather, it was ‘coloured by the overarching view that the overall impact on affordable housing supply would be “minor”’ (para 198).

Comment

The judgment appeals to the public lawyer’s inner geek, in that it touches upon constitutional fundamentals, such as whether article 9 of the Bill of Rights 1689 prohibited the quashing of the WMS (a question that, tantalisingly, the Judge left for another day) and the extent of the amenability of prerogative powers to judicial review.   Doubtless such matters will be the subject of future case law (including potentially on appeal) and academic discussion.  

More importantly, however, the ruling has many ‘real world’ implications, both in the context of planning and more widely.

Most obviously, the relief granted by the Court means that the NPPG will be amended.  Clearly, this will influence the practice of LPAs and their interactions with developers.

• Holgate J’s exacting analysis of the defendant Secretary of State’s evidence and its interaction with complex planning legislation is also a useful reminder that, where appropriate, the courts will not shy away from detailed scrutiny of executive decision-making, even where those decisions are based on economic considerations.  As another wave of Government cuts approaches, individuals and local authorities alike can perhaps take heart that those decisions can be subject to judicial scrutiny.
• Finally, the judgment underlines the importance of compliance with the PSED before the relevant decision is taken.  The Government’s evidence in this case demonstrated that the PSED had not even been considered prior to the announcement of the new policy in November 2014.  It sought to rectify this by completing the EIA some months later.  Holgate J was unimpressed: ‘there must be compliance with the PSED before the decision in question is taken because that process is meant to inform and influence the decision’ (para 191); ‘compliance with the PSED requires the decision-maker to perform the assessment with rigour and with an open mind…[That] will often be more difficult where a decision-maker has carried out a consultation exercise and has already determined the final content of his policy…’ (para 193).  The Judge of course found that, in any event, the EIA did not comply with the substantive requirements of the PSED or the 2010 Act.