Barratt Developments Plc v Wakefield Metropolitan District Council and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,LORD JUSTICE STANLEY BURNTON,LADY JUSTICE ARDEN |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] EWCA Civ 897 |
| Docket Number | Case No: C1/2010/0044 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2010 |
[2010] EWCA Civ 897
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QUEENS BENCH DIVISION,
ADMINISTRATIVE COURT
Mr Justice Pitchford
Before: Lady Justice Arden
Lord Justice Carnwath
and
Lord Justice Stanley Burnton
Case No: C1/2010/0044
CO/5036/2009
Peter Village QC & David Loveday (instructed by Macfarlanes Solicitors) for the Appellant
Vincent Fraser QC (instructed by The City of Wakefield Metropolitan District Council) for the Respondents
Hearing date : 6th July, 2010
Background
The claimants (“Barratt”) are a well-known house-building company. In these proceedings, they challenge policy CS6 in the Council's “Core Strategy”, which lays down requirements for “affordable housing”. Pitchford J dismissed their application for judicial review. He gave permission to appeal on the basis that the case raised an issue of general importance.
The material parts of the Core Strategy, as amended on the recommendation of the inspector, are as follows:
“b. All proposals for additional housing, including those for a mix of uses, above identified size thresholds must make provision for sufficient affordable housing to meet identified needs. Unless otherwise agreed with the Council, affordable dwellings should be provided on the application site and 30% of new dwellings on developments across the district which meet the following thresholds should be dwellings which can be defined as affordable:
i. where the proposal is for 15 or more dwellings, or is on a site of 0.5 hectares or more in area, and is within an urban area or local service centre as defined in the settlement hierarchy;
ii. where the proposal is for 6 or more dwellings, or is on a site of 0.2 hectares or more, and is within a village as defined in the settlement hierarchy.
…
The actual amount of affordable housing to be provided is a matter for negotiation at the time of a planning application, having regard to any abnormal costs, economic viability and other requirements associated with the development. All but the smallest sites should contribute to the provision of affordable housing.”
Barratt submit, in summary, that the target of 30% is unsupported by adequate economic evidence, that the defect is not cured by the provision for negotiations on individual sites, and that the policy is in other respects unclear or unsupported.
At the heart of the present dispute is the problem of reconciling the authorities' desire to maximise the provision of affordable housing, with the developers' need for a reasonable return to make development viable. Wakefield's strategy was originally devised at a time when the market was buoyant and expected to remain so. By the time of the inspector's consideration in late 2008, market conditions had changed dramatically. The judge explained the dilemma:
“If the target for affordable housing provided in the Core Strategy is set unrealistically high, developers will be discouraged from bringing forward proposals and social housing needs will not be adequately addressed. The strategy depends upon profitable development, and profitable development depends in large measure upon buoyant land values. If prospective development land is unprofitable because it is ‘blighted’ by a social housing burden it is less likely that the land will be sold for development and the strategy may, in consequence, fail to bear its intended fruit. If, on the other hand, the affordable housing target is set too low to address need, the Council will fail to deliver national policy. It was Wakefield's view that it had not been sufficiently aggressive in pursuit of affordable housing provision in its District during the previous five years under its existing UDP. At the time when its Core Strategy (requiring at least 30% affordable housing with an 80/20 split) was in preparation market conditions were favourable. By the time the policy was submitted to the Inspector the market had slumped and no new housing was being constructed.” (para 16)
Statutory and policy framework
The Planning and Compulsory Purchase Act 2004, supplemented by the Town and Country Planning (Local Development)(England) Regulations 2004, provides the statutory framework for the preparation of the Local Development Framework (“LDF”), of which the Core Strategy forms part. These documents form part of the “development plan” for the area, in accordance with which development applications must be decided unless material considerations indicate otherwise (s 38(3)(6)).
The judge set out in some detail the procedural requirements for preparation of the Core Strategy. I need only pick out the key points:
i) The authority must have regard among other things to:
a) national policies and advice contained in guidance issued by the Secretary of State and
b) the Regional Spatial Strategy (“RSS”) for the region in which the authority is situated (s 19(2)).
ii) The Core Strategy must be in “general conformity with” the Regional Spatial Strategy (s 24 (1)).
iii) It must contain a reasoned justification of the policies (reg 13(1)).
iv) Before it is adopted it must be submitted for independent examination by a planning inspector on behalf of the Secretary of State, to determine (inter alia) whether it satisfies these requirements and “whether it is sound “(s 20(5)).
v) Any person who makes representations seeking to change the plan must be given an opportunity to appear before and be heard by the inspector (s 20(6)).
vi) The inspector must make recommendations and give reasons for those recommendations (s 20(7)).
vii) The authority can only adopt the strategy, whether as originally prepared or with modifications, in accordance with recommendations of the inspector (s 23).
It is to be noted that the procedure does not include a formal planning inquiry in the traditional sense. Collins J described what I understand to be the ordinary format for such an open hearing:
“… this is not a traditional planning inquiry. It is, as its title suggests, an examination. Inspectors are encouraged to make it relatively informal, and it can be, and frequently is, I understand, carried out by means of discussion. Although formal evidence can no doubt be given and tested if the Inspector decides that that is essential for the purpose of reaching the necessary result, that would be rare, and generally speaking it is dealt with on the basis of written documents being presented, and then discussion between the interested parties and the Inspector based upon those written documents.” ( Persimmon Homes (North East) Ltd v Blyth Valley BC [2008] EWHC 1258 (Admin) para 49)
Under the heading “National Policy Guidance” the judge also quoted at length from two relevant national Planning Policy Statements, PPS 3 (issued in November 2006) and PPS 12 (issued in June 2008). It is unnecessary to repeat the detail. I note that paragraph 29 of PPS 3 advises that authorities should set “an overall (ie plan-wide) target for the amount of affordable housing to be provided”, and should set “minimum site size thresholds” for the schemes in which such provision is to be made.
PPS 12, under the heading “Justification of Core Strategies”, advises:
“4.36 Core strategies must be justifiable: they must be:
- founded on a robust and credible evidence base; and
- the most appropriate strategy when considered against the reasonable alternatives.”
By way of explanation of the latter point, the statement adds:
“Alternatives
4.38 The ability to demonstrate that the plan is the most appropriate when considered against reasonable alternatives delivers confidence in the strategy. It requires the local planning authority to seek out and evaluate reasonable alternatives promoted by themselves and others to ensure that they bring forward those alternatives which they consider the LPA should evaluate as part of the plan-making process…”
Another section deals with “Effectiveness”:
“4.44 Core strategies must be effective: this means they must be:
- deliverable;
- flexible; and
- able to be monitored.”
Each of these concepts is further explained in the succeeding paragraphs.
I would emphasise that this guidance, useful though it may be, is advisory only. Generally it appears to indicate the Department's view of what is required to make a strategy “sound”, as required by the statute. Authorities and inspectors must have regard to it, but it is not prescriptive. Ultimately it is they, not the Department, who are the judges of “soundness”. Provided that they reach a conclusion which is not “irrational” (meaning “perverse”), their decision cannot be questioned in the courts. The mere fact that they may not have followed the policy guidance in every respect does not make the conclusion unlawful.
As already noted, there is by contrast an express statutory requirement that the Core Strategy should be in “general conformity” with the RSS. In this case, the relevant RSS was contained in Policy H4 of the Yorkshire and Humberside Plan (Regional Spatial Strategy to 2026), May 2008, which provided as follows:
“A The Region needs to increase its provision of affordable housing. Plans, strategies, programmes and investment decisions should ensure the provision of affordable housing to address the needs of local communities.
B LDFs should set targets for the amount of affordable housing to be provided. Provisional estimates of the proportion of new housing that may need to be affordable are...
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