Planning: successful challenge to new style DPDs Persimmon Homes (North West) Limited (1) Barratt Homes Limited (2) and Millhouse Developments Limited (3) v Blyth Valley Borough Council (28 May 2008)

Blyth Valley Borough Council had adopted a 30 per cent affordable housing policy for all new developments in the borough providing ten or more homes. The policy formed part of the council's core strategy. Persimmon Homes and the two other housing developers sought to quash the policy, claiming that their housing plans were prejudiced by the policy.

Collins J summed up the key issue as follows: "The question that I have to decide is whether the material before me shows that the starting point, the 30 per cent, is one which is flawed, and flawed because no consideration in reaching it was given to the issue of economic viability.” Put simply, was the 30 per cent target in fact needed given property prices in the area?

The reasoning behind Collins J's decision was that the inspector had failed to take into account economic viability. The developers had claimed the inspector failed to provide any proper, adequate or intelligible reasons for why the 30 per cent figure was justified. They had also pointed to the conclusions of other inspectors in previous matters who had concluded that such a proportion of affordable housing was not needed in the area.

The decision will be a disappointment to the council concerned and may be of some concern to other authorities in attempting to meet their duty to provide affordable homes. The council has sought leave to appeal the decision.

McCann v UK (13 May 2008)

Birmingham City Council granted the applicant and his wife a joint secure tenancy of a house. The wife alleged domestic violence and the applicant was served with an ouster order. The local authority re-housed the wife and the applicant then moved back into the family house. When the local authority realised the house was no longer empty, an officer visited the wife and got her to sign a notice to quit thereby terminating the secure tenancy.

The local authority brought possession proceedings against the applicant. The county court dismissed the claim on the ground that a possession order would interfere with the defendant's article 8 rights (respect for home) and that the interference was not justified under article 8.2. The local authority appealed and the Court of Appeal, following the decision in Qazi v Harrow (2003), held that there was no article 8 defence to the lawful possession proceedings. The applicant applied for judicial review of the local authority’s decision to procure a notice to quit but the claim was dismissed.

The applicant was evicted and brought an application to the European Court of Human Rights ECtHR. The applicant argued that the manner in which the notice to quit was procured was a violation of his article 8 rights, ending his secure tenancy with no chance of challenge. The applicant sought to rely on Connors v UK (2004), that eviction should be accompanied by procedural safeguards. The local authority sought to rely on Kay v Lambeth LBC (2006).

The EctHR found that the interference with article 8 had been lawful and in pursuit of a legitimate aim, however the question was whether the interference was proportionate. Applying Connors, the court held that any person at risk of losing his home should be able to have the proportionality of the measure assessed by independent tribunal, regardless of whether there was continued right of occupation. The court did not accept that a consideration of proportionality under article 8 would have serious consequences for domestic law. It would be exceptional for an arguable case to be raised that would require the issue to be considered.

R (on the application of Bath) v North Somerset Council (4 April 2008)

This case highlights some of the principles used by the court in trying to resolve the tension between holding local authorities to a commitment and not fettering their discretion in the interest of good administration. The facts of the case are as follows. In June 2007 the local authority resolved to effect a large-scale voluntary transfer of its housing stock and allocated £8 million of the money received to housing projects. A consultation document had been issued in 2004 that stated that the money received from the transfer would be spent entirely on capital housing projects. At that time the proceeds were expected to be between £6-8 million but the monies actually received were over £22 million.

The claimant applied for judicial review, alleging that the local authority had breached a legitimate expectation that it would apply the entire proceeds to housing. The court dismissed the application. The court indicated that the law required a legitimate expectation to be founded on a clear and unqualified representation to the claimant or other tenants but there was no such representation in the consultation documentation or otherwise.

The court considered whether there was a claim based on legitimate expectation of a substantive benefit. The approach was:

  1. whether the departure from the representation was so unfair as to amount to an abuse of power; and
  2. if the departure was justified by overriding public interest (see R v North and East Devon Health Authority, ex p Coughlan (1999). The court also noted that the important principle in Coughlan and Nadarajah Abdi v Secretary of State for the Home Department (2005) was that, if a public body had made a representation creating a legitimate expectation to a discrete body of persons, it should not be allowed to depart from it lightly. Proportionality was a key factor in weighing up all the competing interests. Applying these principles the court found that there had been no unfairness to the claimant or other tenants.