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

The court held that the Secretary of State's Written Ministerial Statement of 28 November 2014 (and the consequent amendments to the National Planning Practice Guidance) introducing national thresholds exempting small developments from section 106 affordable housing and tariff-style contributions, together with the vacant building credit, were unlawful. The judge identified multiple legal defects: the national policy was incompatible with the statutory planning code (notably the role and primacy of adopted local plans under section 38(6) of the Planning and Compulsory Purchase Act 2004 and decision-making under section 70(2) of the Town and Country Planning Act 1990); the consultation was procedurally unfair; the Secretary of State failed to take into account obviously material considerations; and the public sector equality duty in section 149 of the Equality Act 2010 was not satisfied.

The court concluded that Ministers had intended blanket exemptions which effectively displaced adopted local plan policies without following the statutory local plan procedure or providing a transitional mechanism. The consultation and decision-making materials did not disclose or adequately assess the evidence for the asserted "disproportionate burden" on small developers nor the differing local impacts. The subsequently produced Equality Impact Assessment carried out after the policy change did not cure the earlier PSED failure. For these reasons the policy changes were quashed in substance and declaratory relief was ordered.

Background and parties. The claim was brought by West Berkshire District Council and Reading Borough Council (local planning authorities) against the Secretary of State for Communities and Local Government. The claim challenged (i) the Written Ministerial Statement of 28 November 2014 (HCWS50) and related amendments to the National Planning Practice Guidance (NPPG) creating national thresholds excluding certain small-scale housing (10 units/1000m2; 5 units in some rural designations) from affordable housing and tariff-style contributions, and introducing a vacant building credit; and (ii) the decision of 10 February 2015 to maintain those changes following an Equalities Impact Assessment.

Relief sought and procedural posture. The claimants sought judicial review relief, including quashing orders and declarations that the Secretary of State's policy changes were unlawful. The application was determined at a rolled-up hearing in the Administrative Court before Holgate J.

Issues for decision. The principal issues were: (i) whether the national policy was inconsistent with the statutory planning framework and unlawfully displaced or overrode adopted local plan policies; (ii) whether the consultation process was unfair; (iii) whether the Secretary of State failed to take into account obviously material considerations; (iv) whether the public sector equality duty (section 149 Equality Act 2010) had been complied with; and (v) whether the decision was irrational. The court also considered the legal effect of the vacant building credit and the interaction with the Community Infrastructure Levy regime and with local viability assessments.

Court's reasoning and conclusions. The judge concluded: (i) the national policy, as promulgated, was aimed at creating blanket exemptions that would operate in practice to displace adopted local plan affordable housing policies and therefore was incompatible with the statutory scheme of plan-making and decision-taking under the Planning and Compulsory Purchase Act 2004 and the Town and Country Planning Act 1990 (applying the principle that prerogative/common-law policy powers must be exercised compatibly with statutory schemes, Laker Airways and subsequent authority); (ii) the consultation did not furnish consultees with the factual basis for the asserted "disproportionate burden" on small-scale developments and therefore was procedurally unfair under the Sedley criteria (Moseley), and the Secretary of State failed to take into account materially relevant matters (including potential impacts on local affordable housing supply and on CIL); (iii) the post hoc Equality Impact Assessment did not cure the earlier failure to have "due regard" under section 149 at the time the policy was adopted; and (iv) for these reasons the policy changes were unlawful. The judge granted permission for judicial review and indicated appropriate relief, including quashing/declaratory remedies; the parties ultimately accepted that a declaration would provide effective relief, avoiding Article 9 issues concerning Parliamentary proceedings.

The claim succeeded. Holgate J held that the Secretary of State's policy changes of 28 November 2014 (and the decision to maintain them on 10 February 2015) were unlawful because they were incompatible with the statutory planning framework, the consultation was unfair, the Secretary of State failed to take into account obviously material considerations and he failed to comply with the public sector equality duty in section 149 of the Equality Act 2010. The court therefore granted relief in the form of permission for judicial review and declared the policy unlawful; the judge found that quashing or declaratory relief was appropriate to remedy the unlawful policy.