In West Berkshire District Council v Department for Communities and Local Government [2015] EWHC 2222 (Admin) (Holgate J) the Planning Court (part of the Administrative Court) held that proposals in relation to affordable housing, social infrastructure contributions and vacant building credit were unlawful.

  1. Key Points
  2. Background
  3. The Decision
  4. Comment

1. Key Points

  • A Secretary of State's prerogative powers in relation to policy are not freestanding when exercised within a statutory framework and cannot be exercised incompatibly with or frustrate a statutory scheme.
  • A national policy cannot simply override an adopted local plan policy or create an exemption such that the local policy need not be applied, in particular where legislation presumes that local policy applies. The merits of each of the national and local policy need to be weighed as they apply to the circumstances of an individual case.
  • A policy may be held to be unlawful if it gives rise to an unacceptable risk of unlawful decision-making.
  • A consultation process is likely to be unfair where a defendant:
    • fails properly to explain the key rationale for the policy and not providing the opportunity to make representations on material that was known to the defendant and central to the formulation and adoption of the policy; and
    • forms a view that is flatly contrary to relevant evidence that consultation responses have covered as well as advice from officials, and the defendant fails to grapple with relevant points made by consultees.

2. Background

The Claimants challenged the Defendant's Planning Practice Guidance (the Guidance), which proposed to exempt small developments from being bound by affordable housing quotas. They sought a continued ability to seek, in relation to eligible developments, affordable housing contributions and payments under 'section 106 agreements'. The Guidance also established a vacant building credit, to be deductible from the overall affordable housing contribution, which the Claimants sought to quash.

The Claimants argued that the Guidance would reduce affordable housing and as part of this undermine their ability to deliver affordable housing in West Berkshire and Reading. They contended that the loss of 'section 106 agreements' would reduce their ability to fund local community infrastructure such as roads, schools and playgrounds.

The Claimants raised five grounds of challenge: the national policy was inconsistent with the statutory scheme and its purpose; the Defendant's consultation process was unfair; the Defendant had failed to take material considerations into account; the Defendant had failed to comply with the public sector equality duty in deciding to adopt the new policy; and the decision to introduce new national exemptions from affordable housing requirements was irrational.

In response, the Defendant sought to rely more or less on its main policy rationale, that the Guidance would reduce red tape and thereby address a "disproportionate burden" on small scale developers, which was allegedly preventing the delivery of "much needed small scale housing sites".

3. The Decision

The Judge held resoundingly in favour of the Claimants on all grounds. Focussing on the grounds relating to inconsistency and consultation, given their particular centrality to the judgment:

Inconsistency of the policy with the statutory scheme and its purpose

The Judge recapped on case law that established that it was for Parliament and Ministers to determine the objectives of planning policy. Notwithstanding that the Secretary of State is at the apex of the planning system and entitled to set national planning policy, his prerogative power is not necessarily freestanding, and can be curbed where, as here, it was being exercised within a statutory framework.

The policy was held to be inconsistent with certain core principles of the statutory scheme, having regard to the fact that the relevant legislation did not give any priority to, or presumption in favour of, national policy. Rather, the priority was in favour of policies adopted in development plans. The new national policy had the aim of conferring exemptions to the development plans in each and every case where affordable housing requirements were inconsistent with national thresholds. Furthermore, it purported to override local plan policies, notwithstanding that the variance from national guidance was otherwise permitted where justified under the statutory code. The Secretary of State also had other powers to achieve alternations to local plans, subject to independent scrutiny through public examination, but those powers had not been used.

The Judge identified the alternative way of looking at this ground, namely that the policy gave rise to an unacceptable risk of unlawful decision-making. He considered that it did, but it was not necessary to decide the ground in this way.

Unfair consultation process

The Judge applied the well-established Sedley principles, in particular principle (2) that sufficient reasons for the proposal so as to allow intelligent consideration and responses should be given; and principle (4) that the product of the consultation must be taken conscientiously into account.

The policy was said to help to address an alleged "disproportionate burden" on small scale developers which was said to be preventing the delivery of "much needed small scale housing sites". This concept was integral to the policy and its rationale, both as proposed and then adopted. However, this "disproportionality" and the material on which it was supposedly based was not explained by the consultation paper and was not made available to consultees. Therefore, there was no meaningful opportunity for consultees to respond to the Defendant's key justification. The Judge considered this to be plainly unfair.

The Judge took a very dim view of the Defendant's consultation response, which stated that "the wide range of views and evidence submitted" had been "carefully considered" and the policy would go ahead "without adversely impacting on local contributions to affordable homes and infrastructure". This text was "unexplained and surprising" in light of the Defendant's own evidence that Ministers had been advised that in view of the "weight of evidence" submitted, there would be a significant impact and there was a potential viable alternative. No evidence was presented to indicate that the advice was wrong, or that consideration had been given to the potential alternative. The Defendant had also failed to grapple with other points made by consultees which were of central importance.

Relief

The Judge considered that the Claimants were entitled to a quashing order. However, the policy itself was promulgated by a Written Ministerial Statement. This aspect of the quashing raised constitutional issues having regard to parliamentary privilege and Article 9 of the Bill of Rights 1689. The Judge was critical of the Defendant for not making submissions on this aspect before receiving the draft judgment. The Judge was, however, able to grant relief though quashing relevant parts of the Guidance; the Defendant's decision to adopt the new policy; and the Defendant's decision to maintain that decision. The Claimants were duly awarded their costs.

4. Comment  

Although the Judge carefully sought to seek to limit his legal conclusions to this particular case, he plainly considered established case law and principles to reach those conclusions. Accordingly, this decision does have wider relevance.

The judgment makes it clear that the Government is not simply free to inject policies where to do so cuts across the law, in particular statutory frameworks approved by Parliament. It is a reminder to public bodies that consultation processes must be run fairly and properly – this includes considering carefully the information and material that must be disclosed with a consultation to out consultees in a position where they can properly understand the propose and respond intelligently. It also includes properly assessing the evidence provided by consultees and properly considering adverse consequences.

In this case, the Judge was able to grant effective relief without having to resolve the constitutional issues that arise in relation to Written Ministerial Statements, however this question remains open. It shows the importance of framing relief appropriately in such cases.