West Berkshire District Council Reading Borough Council v Department for Communities And Local Government

National planning policy may guide local planning authorities, but it cannot lawfully create blanket exemptions that override adopted local plan policies. Under the statutory planning scheme, adopted development plan policies have priority, subject to the statutory weighing of material considerations. National guidance must ordinarily be considered alongside those policies.

A policy-maker exercising a common law or prerogative power within a statutory planning framework must take account of obviously material considerations. Consultation must disclose sufficient information to permit an intelligent response and the decision-maker must conscientiously consider the consultation responses. The public sector equality duty must be discharged before the policy is adopted, with rigour and an open mind. A later equality assessment cannot ordinarily validate an earlier unlawful decision.

West Berkshire District Council and Reading Borough Council sought judicial review of national planning policy changes announced by the Secretary of State on 28 November 2014 and maintained following an equality assessment on 10 February 2015.

The changes introduced national thresholds below which affordable housing and tariff-style social infrastructure contributions should not be sought, together with a vacant building credit. The claimants argued that the policy unlawfully displaced local plan policies, that consultation was unfair, that material considerations had been ignored, and that the public sector equality duty had not been complied with.

1. Ground 2 succeeded. The national policy purported to create immediate, blanket exemptions from affordable housing and tariff-style contribution requirements in adopted local plans. That was incompatible with the statutory planning scheme. Section 38(6) of the Planning and Compulsory Purchase Act 2004 gives priority to adopted development plan policies, while national policy is a material consideration. The Secretary of State could not use a common law policy-making power to circumvent that scheme or direct decision-makers to disregard inconsistent local policies. The policy was therefore unlawful applying [1977] QB 643 and [2011] EWCA Civ 639.
2. The Secretary of State’s alternative explanation, advanced only at the hearing, could not cure the defect. It differed radically from the published policy, created uncertainty, and had not been the subject of consultation. A policy could properly provide indicative thresholds or guidance, as earlier policies had done, but local authorities remained entitled to formulate justified policies reflecting local circumstances.
3. Ground 3 succeeded. The consultation did not explain the basis or evidence for the asserted disproportionate burden on small-scale development. Consultees therefore could not respond meaningfully to a central justification for the policy. The Government also failed conscientiously to address the likely reduction in affordable housing, the difference between three-unit and ten-unit thresholds, and the interaction with community infrastructure levy charging.
4. Ground 1 succeeded. The Secretary of State failed to consider obviously material matters, including the reduction in land available for affordable housing, the resulting need for additional land release, the possibility of using indicative thresholds, and the absence of transitional arrangements.
5. Ground 4 succeeded. The equality assessment carried out after the November decision did not satisfy section 149 of the Equality Act 2010. It failed adequately to investigate the vacant building credit, the effects on protected groups, local variations in affordable housing supply, and the consequences for persons relying on affordable housing beyond social housing. It was not sufficiently rigorous or open-minded. The duty had to be performed before adoption of the policy.
6. The challenges to affordable housing thresholds, tariff-style contributions and the vacant building credit therefore succeeded. Permission to apply for judicial review was granted and declaratory relief was agreed as sufficient in relation to the Written Ministerial Statement.

First-instance judicial review in the Administrative Court. The challenges to the policy changes succeeded. Declaratory relief was granted by agreement; the question of quashing the Written Ministerial Statement itself was not pursued.