R J A Pye (Oxford)Ltd Bellway Homes Ltd and The Housebuilders Federation and Oxford City Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lord Justice Mummery,Mr Justice Nelson
Judgment Date30 Jul 2002
Neutral Citation[2002] EWCA Civ 1116
Docket NumberCase No: C2001/2494/QBACF

[2002] EWCA Civ 1116

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Pill

Lord Justice Mummery and

Mr Justice Nelson

Case No: C2001/2494/QBACF

The Queen on the Application of J a Pye (Oxford) Ltd, Bellway Homes Ltd and the Housebuilders Federation
Applicants
and
Oxford City Council
Respondent

David Holgate QC (instructed by Messrs Masons) for the Applicants

Robert McCracken and Adam Solomon (instructed by Oxford City Council Legal and Corporate Services) for the Respondent

Lord Justice Pill
1

1. This is an appeal against the judgment of Mr Justice Ouseley given on 26 October 2001 whereby he refused an application by J Pye (Oxford) Ltd and Bellway Homes Ltd, who are substantial house builders, and the Housebuilders Federation, collectively described as the applicants, against Oxford City Council (“the Council”). The relief sought was an order quashing the decision of the Council on 9 April 2001 to adopt Supplementary Planning Guidance on social housing, an order declaring that the Council was not entitled to adopt policies contained in the SPG as non-statutory policies and a declaration that the Council was under a duty to promote policies for social housing in a review of the Oxford Local Plan, including policies of the kind contained in SPG. The claim was dismissed.

2

2. A planning issue which has attained considerable prominence in recent years is that of affordable housing. The Secretary of State issued Circular 6/98 entitled “Planning and Affordable Housing” and PPG 3: Housing (2000), of March 2000 stated at paragraph 15:

3

Local Plan Policies for affordable housing should:

• Indicate how many affordable homes need to be provided throughout the plan area including the different types of affordable housing needed by households of different characteristics, taking account of rural as well as urban needs—

• Identify suitable areas and sites on which affordable housing is to be provided and the amount of provision which will be sought.

4

It is common ground that the community's need for affordable housing is a material planning consideration which may be taken into account when formulating development plan policies and in determining planning applications.

5

3. In September 1997, the Council adopted the Oxford Local Plan for the period 1991 to 2001. They complied with their duty under section 36(1) of the Town and Country Planning Act 1990 (“the 1990 Act”) to “prepare for their area a plan to be known as a local plan”. Section 36(2) provides that “a local plan shall contain a written statement formulating the authority's detailed policies for the development and use of land in their area”. Section 36(6) provides, amongst other things, that the local plan “may contain such descriptive or explanatory matter as the authority think appropriate”. Regulation 7(1) of the Town and Country Planning (Development Plan) (England) Rules 1999 (No 3280) (“the 1999 Regulations”), made under the 1990 Act, provides that a local plan shall contain a reasoned justification of the policies formulated in the plan.

6

4. Following a heading “Social/Affordable Housing”, Plan Policy H 05 provides:

“On larger housing sites proposed in HO 1 and HO 2 the Council may seek an agreement to achieve a reasonable mix and balance of house types and sizes to cater for a range or housing needs, including a significant element of social housing”

7

The explanatory matter which accompanies the policy provides:

“3.36 Planning Policy Guidance Note 3 advises against imposing a general quota, suggesting that the proportion should be site specific and depend upon particular market conditions. In order to satisfy the need identified by the Council, based on the present breakdown of tenure in the City, the size of the housing register and the incidence of homelessness, 50% of new housing would need to be social housing. This is the target set by the Council for the Blackbird Leys development. However, targets for individual sites must be realistic, and experience suggests that in normal circumstances the Council can look for a minimum of 20% of the housing units being affordable.

3.37 This policy will not be automatically applied to all sites, since situations may arise where applying such a policy would inhibit the achievement of other important planning policies, such as the redevelopment of a badly sited industry. Full account will also have to be taken of special infrastructure costs associated with a particular site and, not least, the stage already reached in the planning process.

3.38 Bearing in mind the concentration of housing problems in Oxford the Council will give sympathetic consideration to housing proposals as an exception to normal Local Plan policies where a significant element of social housing is proposed. It should be noted however that the including of social housing will not necessarily override important policy objections, including the Structure Plan policy limitation on housing provision. The Council will also have regard to other material considerations including other planning gains such as those set out in HO 2. Whether this policy will be applied and in what form will depend on the precise circumstances of each site.”

8

The explanatory material also provides that the Council prefer the term social housing to the term affordable housing used in the Circular because they will normally be seeking subsidised housing. The concepts can, for present purposes, be treated as the same.

9

5. The present dispute has arisen because, in Supplementary Planning Guidance (“SPG”) adopted in April 2001, the Council have purported, it is claimed, to alter their policy in relation to social housing, alteration which could lawfully be achieved only by an alteration to the Oxford Local Plan. The power to alter a local plan is conferred by section 39(1) of the 1990 Act:

(1) A local planning authority may at any time prepare proposals—

(a) for alterations to the local plan for their area; or

(b) for its replacement.

10

6. The role of development plans, such as the Oxford Local Plan, in the planning system and the relationship to them of SPG is considered in PPG 12, issued by the Secretary of State in December 1999. Regulation 20(2) of the 1999 Regulations provides that, in formulating proposals in a local plan, a local planning authority shall have regard, amongst other things, to strategic planning guidance given by the Secretary of State. In paragraph 1.1, it is provided:

“The Government remains fully committed to the plan-led system, given statutory force by section 54A of the Town and Country Planning Act 1990 (“the 1990 Act”). Where an adopted or approved development plan contains relevant policies, section 54A requires that an application for planning permission or an appeal shall be determined in accordance with the plan, unless material considerations indicate otherwise. This provides a framework for rational and consistent decision making. It also provides a system which enables the whole community — business, other organisations, and the general public — to be fully involved in the shaping of planning policies for their area, through public participation processes.

1.2 The plan-led system can only be successful and command public confidence if plans are in place and are kept up to date. …”

11

8. Under the heading Plan Review, it is provided (paragraph 2.20) that the “plans should be as up-to-date as possible, particularly in view of their status in the determination of planning applications and as a means of encouraging development in appropriate locations”. It is stated (paragraph 2.21) that “plans should therefore be reviewed regularly. The timing and frequency of review will depend upon local circumstances, but effective monitoring of a plan can provide the necessary information on which a decision to review can be taken”. It is also provided (paragraph 2.23) that “while there are thus no hard and fast rules on how often a plan should be reviewed, it is expected that … plans should be reviewed in full at least once every 5 years, and partial reviews may be appropriate (eg on particular topic areas) on a more frequent basis”.

12

9. The possibility of SPG is introduced at paragraph 3.14:

“As indicated above, policies in development plans should concentrate on those matters which are likely to provide the basis for considering planning applications or for determining conditions to be attached to planning applications or for determining conditions to be attached to planning permissions. Excessive detail should be avoided. Local authorities should therefore consider the use of supplementary planning guidance as a means of setting out more detailed guidance on the way in which the policies in the plan will be applied in particular circumstances or areas.”

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10. Under the heading “Supplementary Planning Guidance” it is then provided:

“3.15 Supplementary planning guidance (SPG) does not form part of the plan. It can take the form of design guides or area development briefs, or supplement other specific policies in a plan. SPG must itself be consistent with national and regional planning guidance, as well as the policies set out in the adopted development plan. It should be clearly cross-referenced to the relevant plan or proposal which it supplements. It should be issued separately from the plan and made publicly available; consultation should be undertaken, and the status of the SPG should be made clear. SPG should be reviewed on a regular basis alongside reviews of the development plan policies or proposals to which it relates.

3.16 While only the policies in the development plan can have...

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