In R (on the application of Skipton Properties Limited) v Craven District Council  EWHC 534 (Admin), the Planning Court (Jay J) considered an application for judicial review of the defendant council's ("the Council") decision to adopt a document which set out its interim approach to negotiating affordable housing contributions in regard to planning applications for residential development, pending the Council's adoption of a new local plan. Jay J had to determine whether the Council had failed to comply with certain statutory conditions which rendered its adoption of the document unlawful and, if so, whether relief should be granted.
The High Court must generally refuse relief on an application for judicial review if it appears "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred" under section 31(2A) of the Senior Courts Act 1981.
In this case, Jay J was unable to say what the outcome would have been if the Council had not failed to comply with the applicable statutory requirements and therefore proceeded to quash the document adopted by the Council.
The Council's local plan did not provide for affordable housing (save in one very specific respect). Between 2012 and 2015, the Council adopted and then subsequently updated a document setting out its interim approach to negotiating affordable housing requirements, which ultimately became the "Negotiating Affordable Housing Contributions (December 2015)" ("NAHC 2015"). In July 2016, the Council considered a revised approach to affordable housing in light of changes in national policy. On 2 August 2016, the Council adopted the document entitled "Negotiating Affordable Housing Contributions (August 2016)" (the "NAHC 2016").
The drafters made clear that the NAHC 2016 was intended as a stop-gap measure while the Council prepared an affordable housing policy as part of its new local plan.
The claimant, Skipton Properties Limited (a local landowner and residential property developer) applied for judicial review of the Council's decision to adopt the NAHC 2016.
Before the Planning Court, the claimant contended that the adoption of the NAHC 2016 was unlawful on the basis that the NAHC 2016 was required to be adopted as a Development Plan Document ("DPD"), or alternatively as a Supplementary Planning Document ("SPD"), both of which have public consultation and/or independent examination requirements, and, as such, the Council had failed to comply with the relevant statutory conditions of consultation (and, for DPDs, independent assessment). The claimant further contended that the Council failed to carry out a strategic environmental assessment ("SEA"), which would have been required if the document was a DPD.
The court also considered whether section 31(2A) of the Senior Courts Act 1981 applied to this claim. Section 31(2A) requires the court to refuse relief, namely a quashing order, if "it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred".
On the nature of the NAHC 2016, Jay J found that the NAHC 2016 was an interim policy in the nature of a DPD. This meant that the Council had failed to consult on the NAHC 2016, carry out an SEA and submit it to the Secretary of State for independent examination.
In respect of section 31(2A) of the Senior Courts Act 1981, the Council raised the "no difference" principle, arguing that the Planning Court should refuse relief in this case because the Council would simply revert to the NAHC 2015 if the NAHC 2016 was quashed. Jay J had to consider whether it would have been "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred…" The Council submitted that the correct approach was for Jay J to perform the comparative exercise predicated by section 31(2A) as if the NAHC 2016 was never adopted in the first place. Jay J did not agree, noting that the "conduct complained of" in this case consisted of the Council's failure to consult on the NAHC 2016, carry out an SEA and submit the NAHC 2016 for independent examination, ie the legal errors which gave rise to the claim – not the Council's decision to adopt the NAHC 2016. Jay J "simply could not say" what the outcome would have been had the Council not perpetrated these errors (by omission), let alone whether it was "highly likely" that the outcome would have been the same. Given this, there was no barrier to Jay J granting an order quashing the NAHC 2016.
This case highlights the difficulty of the inherently speculative exercise facing judges tasked with applying section 31(2A) of the Senior Courts Act 1981. Unsurprisingly, Jay J applied a limited scope to section 31(2A), a section which upon its introduction removed the absolute discretion previously enjoyed by judges in respect of granting relief in judicial review. This case provides another example of the view that section 31(2A) should only apply to the clearest of cases.