William Davis Ltd & Ors v Charnwood Borough Council

A housing-mix policy that regulates the development and use of land, or guides the determination of planning applications, falls within regulation 5(1)(a)(i) and (iv) of the Town and Country Planning (Local Planning) (England) Regulations 2012. It must therefore be prepared and adopted as a development plan document, with the statutory consultation and independent-examination procedures. An authority cannot avoid that classification by describing the policy as a starting point, preference or supplementary guidance. Economic viability must be considered when formulating such an overall policy, as well as when determining individual applications. A later evidence base cannot justify using a supplementary planning document to alter the development plan.

Five housing developers sought judicial review of Charnwood Borough Council’s Housing Supplementary Planning Document, issued in May 2017. They challenged policy HSPD 9, which prescribed broad proportions for different sizes of affordable and market homes and required justification for a significantly different mix.

The claimants argued that the policy was in substance a development plan policy and should have been prepared as a development plan document. They also argued that the Council had failed to assess economic viability before issuing it. The Council maintained that HSPD 9 merely supplemented its adopted Core Strategy and could properly be issued as an SPD.

1. Policy classification. HSPD 9 was a statement regarding the development of land which the Council wished to encourage and therefore fell within regulation 5(1)(a)(i) of the Town and Country Planning (Local Planning) (England) Regulations 2012. It also contained development-management policies intended to guide the determination of planning applications and therefore fell within regulation 5(1)(a)(iv).
2. The categories in regulation 5(1)(a) are not mutually exclusive. A document falling within subparagraph (i), (ii) or (iv) is a development plan document even if it also contains material falling within subparagraph (iii). The court preferred the analysis in R (Skipton Properties Ltd) v Craven District Council [2017] EWHC 534 to the narrower approach in R (RWE Npower Renewables Ltd) v Milton Keynes BC [2013] EWHC 751.
3. The policy’s percentages were not merely explanatory guidance. They required an applicant to justify departing from the stated mix and could lead to refusal of permission or the imposition of a condition. The policy therefore regulated how land would be developed and would be used in determining planning applications.
4. The statutory planning scheme is a comprehensive code. Policies forming part of the development plan require proper consultation and independent scrutiny. An SPD cannot be used to introduce a policy which should have been included in a development plan document.
5. Economic viability was material to the formulation of the overall housing-mix policy, not merely to the assessment of individual schemes. The Council accepted that no viability assessment had been carried out before issuing HSPD 9. Ground 2 was therefore also made out.
6. The claim succeeded to the limited extent that HSPD 9 was quashed. The remainder of the HSPD was left in force.

First-instance judicial review. The judgment states that permission to bring the claim was granted by Singh J on 25 July 2017.