Skipton Properties Ltd, R (On the Application Of) v Craven District Council

A local planning authority’s interim affordable-housing policy may constitute a development plan document even if described as guidance or a stop-gap measure. The relevant question is whether its statements amount to policies regarding development and use of land which the authority wishes to encourage. Affordable housing is a species of residential development and cannot artificially be separated from it. A document containing such policies must satisfy the statutory consultation and independent-examination requirements. A policy document adopted afresh may be challenged in its entirety, even where much of it repeats an earlier document. The statutory test for refusing relief under section 31(2A) of the Senior Courts Act 1981 is backward-looking and concerns the outcome absent the legal errors complained of.

The claimant, a residential developer, sought judicial review of Craven District Council’s adoption of “Negotiating Affordable Housing Contributions August 2016” (NAHC 2016). The document set thresholds and requirements for affordable housing contributions, including on-site provision, cash contributions in designated rural areas, and vacant building credit.

The claimant argued that NAHC 2016 was a development plan document or, alternatively, a supplementary planning document under the Town and Country Planning (Local Planning) (England) Regulations 2012. It also argued that the Council should have undertaken a strategic environmental assessment and complied with the relevant procedural requirements. The Council contended that NAHC 2016 was merely an interim approach and that relief should in any event be refused under section 31(2A) of the Senior Courts Act 1981.

1. The claim was allowed and NAHC 2016 was quashed.
2. The classification of the document was a question of law, not planning judgment. The Council’s description of NAHC 2016 as an interim approach did not determine its legal character. It was a policy because it set out the Council’s approach to affordable housing pending adoption of a new local plan.
3. Under regulation 5(1)(a) of the Town and Country Planning (Local Planning) (England) Regulations 2012, a document is a development plan document if it contains statements amounting to policies regarding any of the matters in sub-paragraphs (i), (ii) or (iv). The word “regarding” requires a material nexus, but policies may concern particular types of development; a policy need not regulate all development generally.
4. NAHC 2016 fell within regulation 5(1)(a)(i). Affordable housing formed part of residential development, and the percentage and form of affordable housing inevitably affected the economics and viability of residential development. The document therefore contained policies regarding development and use of land which the Council wished to encourage. Its adoption required consultation, strategic environmental assessment and submission for independent examination.
5. Alternatively, NAHC 2016 contained development-management policies within regulation 5(1)(a)(iv). The conjunction “and” in that provision was construed disjunctively. The document regulated applications for planning permission by setting requirements concerning affordable housing.
6. NAHC 2016 could not be a supplementary planning document because no saved policy in the 1999 local plan existed to which it was supplementary. It filled a policy gap rather than supplementing an existing policy.
7. The whole document was open to challenge. The Council had adopted NAHC 2016 as a fresh document, thereby impliedly abrogating NAHC 2015. The challenge was not confined to the provisions which differed from the earlier document.
8. Section 31(2A) of the Senior Courts Act 1981 did not justify refusal of relief. The relevant comparison was with the outcome absent the failures to consult, assess and submit the document for examination. The court could not say that the outcome would highly likely have been substantially the same.

The Council was ordered to pay the claimant’s costs, subject to the stated limits and assessment if not agreed.