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

A national planning policy may be expressed in unqualified terms, provided its application respects statutory requirements and allows exceptions. The development plan is the starting point for planning decisions, but its statutory priority does not prescribe its relative weight against other material considerations. Common law policy-making powers remain subject to public law principles and statutory constraints, while leaving policy choices to Ministers.

Consultation must enable intelligent responses and its product must be conscientiously considered. It need not address every detail or result in acceptance of consultees’ views. The public sector equality duty requires conscientious consideration of equality impacts, which may include other relevant policies. An adequate later equality assessment does not erase an earlier failure, but quashing need not follow where reconsideration would produce the same decision.

The Secretary of State issued a Written Ministerial Statement introducing national planning policy intended to reduce developer contributions on small housing developments. It established thresholds below which affordable housing and tariff-style contributions should not be sought, permitted a lower threshold in designated rural areas, and introduced a vacant building credit against affordable housing contributions.

West Berkshire District Council and Reading Borough Council, both local planning authorities, challenged the policy by judicial review. Holgate J, in [2015] EWHC Admin 2222, declared it unlawful. He upheld challenges based on incompatibility with the statutory planning scheme, failure to consider material matters, inadequate consultation and breach of the public sector equality duty. He did not determine the separate irrationality challenge.

The Secretary of State appealed on all four grounds. The central issues concerned the distinction between the terms and lawful application of national policy, the limits of common law policy-making powers, consultation fairness, and the adequacy and remedial significance of a subsequent equality assessment.

1. The appeal was allowed on all four grounds. Laws and Treacy LJJ delivered the joint judgment, with which the Master of the Rolls agreed.

2. A decision-maker exercising public discretion must consider whether an individual case warrants departure from policy. A policy-maker may nevertheless express policy in unqualified terms without expressly acknowledging exceptions. These principles apply whether the policy-maker and decision-maker are the same person or different persons. The statutory and common law requirements govern the application of policy; they need not be incorporated into its wording.

3. Section 38(6) of the Planning and Compulsory Purchase Act 2004 makes the development plan the starting point, but does not prescribe greater weight for it than for other material considerations. More recent policy may supersede an outdated plan policy. The decision-maker determines relative weight, recognising the plan’s statutory priority. City of Edinburgh Council v Secretary of State supported that approach. The observations in Cala Homes (South) Ltd v Secretary of State, [2011] EWCA Civ 639, addressed policy which would instruct authorities to act outside the statute. The Secretary of State could express a view about weight, but could not dictate it as law.

4. The Written Ministerial Statement expressed substantive policy rather than countermanding section 38(6) or section 70(2) of the Town and Country Planning Act 1990. Its mandatory language was therefore lawful. The common law power to formulate national policy remained subject to fairness, rationality, good faith and the statutory planning context. However, the legislation did not prescribe merits criteria or particular matters which the policy-maker had to address. The Secretary of State was entitled to choose the policy’s scope.

5. The consultation provided sufficient information for intelligent responses. Its references to disproportionate burdens extended beyond strict viability and encompassed the broader effects of contributions on small developers. The specialist consultation considered in R (London Criminal Courts Solicitors’ Association) v Lord Chancellor, [2014] EWHC 3020 (Admin), was materially different. Conscientious consideration required the Minister to assess responses, rather than adopt them. Fair consultation did not require detailed analysis of every available threshold or option.

6. The subsequent Equality Statement satisfied section 149 of the Equality Act 2010. It acknowledged adverse impacts on protected groups and permissibly assessed them alongside other relevant affordable housing policies. The duty required due regard, rather than a precise mathematical exercise for each group or locality. Once the implications had been conscientiously considered, their weight was for the Minister, consistently with Bracking v Secretary of State for Work and Pensions, [2013] EWCA Civ 1345.

7. Proper and timely compliance remained important. Nevertheless, the initial failure did not require quashing as a disciplinary measure. The adequacy, good faith and circumstances of the later assessment were relevant to remedy. Here the assessment was adequate, bad faith was not suggested, and purely disciplinary considerations were insufficient to warrant quashing.

• Court of Appeal (Civil Division), [2016] EWCA Civ 441 : allowed the Secretary of State’s appeal on all four grounds.
• High Court, Administrative Court, Planning Court, [2015] EWHC Admin 2222: Holgate J upheld the local planning authorities’ judicial review challenge and declared the policy unlawful. The grounds concerned statutory compatibility, material considerations, consultation and the public sector equality duty. The separate irrationality ground was not determined.