Secretary of State for Communities and Local Government v West Berkshire District Council & Anor

A national planning policy may be expressed in firm and unqualified terms. Its legality depends on whether it directs decision-makers to act contrary to the statutory planning regime, not on whether it repeats that individual decisions must remain flexible under Planning and Compulsory Purchase Act 2004 section 38(6) and Town and Country Planning Act 1990 section 70(2).

Where planning policy is made under the common law, the statutory context prevents a policy that frustrates those provisions or introduces non-planning matters. It does not impose statutory merits criteria on the policy-maker. Fair consultation requires sufficient information for an intelligent response and conscientious consideration of responses, but not exhaustive detail. The public sector equality duty requires a conscientious, not forensic, assessment; a later adequate assessment does not invariably require the original decision to be quashed.

The Secretary of State adopted a Written Ministerial Statement introducing national thresholds below which affordable-housing and tariff-style contributions under section 106 would generally not be sought on smaller housing developments.

West Berkshire District Council and Reading Borough Council obtained judicial review. Holgate J held the policy unlawful on grounds concerning the statutory planning scheme, relevant considerations, consultation, and the public sector equality duty: [2015] EWHC Admin 2222.

The Secretary of State appealed. The central issues were whether the policy unlawfully displaced local development plans, whether its formulation and consultation were unlawful, and whether a post-decision equality assessment could sustain the policy.

1. Appeal allowed on all four grounds. Laws LJ and Treacy LJ held, with whom the Master of the Rolls agreed, that Holgate J had erred in declaring the Written Ministerial Statement unlawful.

2. The statutory scheme preserved flexibility. Under Planning and Compulsory Purchase Act 2004 section 38(6), the development plan is the starting point, but the decision-maker must assess all material considerations and decide their weight. Section 70(2) of the Town and Country Planning Act 1990 has the same practical effect. A policy-maker may nevertheless formulate policy in unqualified terms. The question is whether the policy, properly read, countermanded or frustrated those statutory duties. The WMS did not do so; it stated national policy, while the law continued to govern how that policy was applied in individual decisions.

3. The Secretary of State’s policy-making power was a common-law power. The statutory planning context prevented policy that frustrated sections 38(6) or 70(2), or introduced matters that were not proper planning considerations. Subject to those limits and ordinary public-law standards, the legislation did not prescribe the merits criteria or material considerations that the Secretary of State had to adopt when making national policy. There was therefore no relevant-considerations error.

4. The consultation fairly conveyed that the Government proposed a threshold to address the broader burdens on small-scale development. It was not confined to strict viability. Consultees had sufficient information to respond intelligently, and the Minister was entitled to evaluate the responses and reach an independent view. Fair consultation did not require a detailed explanation of every possible threshold option.

5. The Equality Statement showed due regard under section 149 of the Equality Act 2010. It recognised potential adverse effects on protected groups and permissibly assessed them in the wider context of affordable-housing provision. The court rejected a forensic review of the assessment’s detail. Although compliance should be timely, an adequate later assessment made in good faith did not require quashing where renewed consideration would not produce a different decision.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and overturned the declaration that the policy was unlawful: [2016] EWCA Civ 441.
• High Court, Administrative Court, Planning Court: Holgate J allowed the local authorities’ judicial-review challenge and declared the Written Ministerial Statement unlawful: [2015] EWHC Admin 2222.