J A Pye (Oxford) Ltd & Ors, R (on the application of) v Oxford City Council

Supplementary planning guidance may supplement an adopted local plan where it is consistent with the plan and operates within the flexibility allowed by its policies. It cannot be used to introduce or conceal policies which section 36 of the Town and Country Planning Act 1990 requires to appear in the plan and be subject to statutory review procedures. A local planning authority is not generally required to compare expressly the merits of supplementary guidance with a partial plan review before adopting lawful guidance. Consultation must be sufficient in the circumstances, but the standard applicable to a local-plan inquiry is not automatically required.

The applicants, substantial housebuilders and their federation, sought judicial review of Oxford City Council’s adoption of supplementary planning guidance on social housing. The guidance generally sought 30 per cent social housing on suitable sites, whereas the adopted Oxford Local Plan referred to a significant element and stated that a minimum of 20 per cent could normally be sought.

Mr Justice Ouseley dismissed the claim. The applicants appealed, arguing that the Council had unlawfully altered the local plan through supplementary guidance, failed to consider a partial plan review, adopted policies inconsistent with the plan, and conducted inadequate consultation. The central issue was whether the guidance supplemented or unlawfully replaced the adopted plan.

1. Appeal dismissed. The supplementary planning guidance was lawfully adopted, and the Council was entitled to seek generally 30 per cent social housing on suitable sites.
2. Supplementary planning guidance must derive from and remain consistent with the adopted development plan. It may particularise and supplement flexible policies, but cannot be used to avoid statutory procedures and public scrutiny for policies which section 36 of the Town and Country Planning Act 1990 requires to be included in a local plan.
3. The local-plan policy, read with its explanatory text, identified 20 per cent as a minimum normally capable of being sought while recognising a need for a significant element of social housing. Seeking generally 30 per cent on suitable sites was not inconsistent with that policy. The court declined to adopt an inflexible reading of the plan.
4. The Council’s continuing duty was to ensure that policies required by section 36 remained in the local plan and were subject to the local-plan review procedure. The guidance could nevertheless operate lawfully within the existing policy framework.
5. Once the adoption of the guidance was lawful, the Council was not under a separate duty expressly to consider or compare a partial review or other alternative course. No general duty to consult as between supplementary guidance and a local-plan review was established.
6. The consultation was sufficient. Earlier representations had been considered, later consultation substantially repeated them, amendments were made, and the officers’ summary was adequate in the circumstances. The more demanding local-inquiry procedure did not provide the applicable standard.
7. The appeal was dismissed with costs to the Council, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): appeal from the judgment of Mr Justice Ouseley dated 26 October 2001, which dismissed the judicial-review claim. Appeal dismissed: J A Pye (Oxford) Ltd & Ors, R (on the application of) v Oxford City Council, [2002] EWCA Civ 1116.