Barratt Developments Plc v The City of Wakefield Metropolitan District Council & Anor

National planning guidance informs whether a core strategy is sound, but remains advisory. The planning authority and inspector are the primary judges of soundness. Their conclusion is unlawful only where it is irrational, or where legally material guidance or considerations have been ignored.

An affordable-housing target may reflect favourable market conditions while permitting negotiation downwards for individual sites. Such a policy is lawful where supported by adequate viability evidence and rationally designed to accommodate changing conditions. An inspector must evaluate the evidence and significant criticisms, but need not address points which were not clearly raised as material controversies.

Barratt Developments Plc challenged policy CS6 in Wakefield's Core Strategy. The policy set a 30% target for affordable housing on qualifying developments, while permitting site-specific negotiation having regard to economic viability and other development requirements.

Pitchford J dismissed the application for statutory judicial review under section 113 of the Planning and Compulsory Purchase Act 2004. Barratt appealed, arguing that the target lacked adequate economic support, conflicted with the inspector's reasoning, and could not be cured by site-specific flexibility. It also alleged inadequate treatment of criticisms of the economic viability appraisal and of possible alternative policies.

The central issue was whether the inspector and Council had lawfully and rationally adopted the target, and whether the inspector had given adequate reasons on the principal controversial issues.

1. Appeal dismissed. Carnwath LJ, with whom Stanley Burnton and Arden LJJ agreed, held that the inspector's approval of policy CS6 was neither irrational nor inadequately reasoned.
2. National policy guidance was advisory. Although authorities and inspectors had to take it into account, they remained the judges of whether a core strategy was sound. The court could intervene only for illegality, irrationality in the sense of perversity, procedural impropriety, or failure to consider guidance or another consideration which was necessarily material in law.
3. The comparison with Persimmon Homes was inapt. That case involved a complete failure to undertake the economic viability assessment required by policy. Here, the inspector had obtained and evaluated a substantial viability appraisal. It was not illegal or irrational to adopt a target at the top of the expected range for favourable market conditions, subject to downward negotiation according to the circumstances of individual sites.
4. The policy was to be read as a whole and in the light of the inspector's stated reasons. Its opening reference to all qualifying proposals was introductory and qualified by the detailed provisions which followed. The statement that all but the smallest sites should contribute was aspirational and remained subject to site-specific negotiation over the appropriate amount, if any.
5. The inspector had an inquisitorial responsibility to evaluate the independent evidence and any significant criticisms arising from written submissions or the examination. She was entitled, however, to rely on the apparent broad agreement among experienced participants. Barratt had not clearly presented its detailed criticism of the assumed internal rate of return as a major issue. The evidence was sufficient to support the conclusion that 30% was a realistic aspiration in favourable conditions.
6. PPS 12 did not impose a freestanding legal duty to compare every conceivable alternative. The inspector should consider serious alternatives advanced by interested parties. She adequately addressed variable targets or trigger points, and no participant had advocated the Sheffield model or another specific alternative.
7. The challenge under section 113 of the Planning and Compulsory Purchase Act 2004 was therefore rejected.

1. Court of Appeal (Civil Division): The court unanimously dismissed Barratt's appeal and upheld the rejection of its legal challenge: [2010] EWCA Civ 897.
2. High Court, Administrative Court: Pitchford J dismissed Barratt's application for judicial review. He granted permission to appeal because the case raised an issue of general importance. No citation for that judgment is stated.