R McCarthy and Stone Retirement Lifestyles Ltd v The Mayor of London on Behalf of the Greater London Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] EWHC 1202 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5358/2017 |
| Date | 23 May 2018 |
[2018] EWHC 1202 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/5358/2017
Mr Rupert Warren QC (instructed by LESTER ALDRIDGE LLP) for the Claimants
Mr Paul Brown QC (instructed by TRANSPORT FOR LONDON) for the Defendant
Hearing dates: 1 and 2 May 2018
This is a challenge to Supplementary Planning Guidance, SPG, issued by the Mayor of London, after consultation. The SPG (Homes for Londoners: Affordable Housing and Viability Supplementary Guidance 2017) is related to policies in the London Plan, part of the statutory development plan for London. It concerns how affordable housing developments or contributions in lieu should be negotiated on the grant of planning permission for housing developments.
The four Claimants are developers of specialist housing for the elderly, which each say that the new SPG has had a very damaging impact on their ability to acquire and develop sites. As is common with new planning policies or guidance, its effects begin when the draft is published, which happened after the election of the Mayor in 2016. He was concerned that the policies in the London Plan were not being used as effectively as they could or should be to produce affordable housing.
The Claimants contend that the SPG is unlawful because (1) it constitutes policy which should only be in the London Plan, which is currently being revised; the SPG was also inconsistent with that Plan; (2) the SPG is a “plan or programme” which required a Strategic Environmental Assessment, SEA, under the Environmental Assessment of Plans and Programmes Regulations, SI 2004 No. 1633 but which had not been undertaken; and (3) it was produced without due regard being had to the constituent parts of the public sector equality duty, PSED, in s149 Equality Act 2010.
The Mayor of London contends that (1) the SPG is no more than guidance as it describes itself to be, and does not contradict any policies in the London Plan; (2) the SPG is not a “plan or programme” nor likely to have any significant effects on the environment, and (3) the PSED was fully complied with.
Permission was refused on all grounds by Supperstone J, and the matter comes before me as a rolled-up hearing, following an order by Holgate J after a short hearing. The Mayor contends that permission or relief should be refused because the proceedings were not commenced promptly after grounds arose, though commenced just within the three-month limit.
The Mayor's planning powers
Two aspects are relevant: plan-making and development control. The former is relevant to the powers which the Claimants say should have been exercised, and the latter to the way in which the Mayor is able to make Guidance effective in substance in the development control process, although it is no more than a material consideration, if lawful.
First, the statutory planning powers. S334(1) Greater London Authority Act 1999 requires the Mayor to produce a “spatial development strategy”; this is known as the London Plan. It must, by subsection (2), “include a statement formulating the Mayor's strategy for spatial development in greater London.” By subsection (3), his strategy “includes his general policies in respect of development and use of land in Greater London.” This is however limited by subsection (5): the spatial development strategy “must deal only with matters which are of strategic importance to Greater London.” The statutory process for its production, in ss335–338, covers the publication of a consultation draft, amendment following consultation, the examination in public of the amended draft by an Inspector appointed by the Secretary of State for Housing Communities and Local Government, consideration of the Inspector's report and any directions given by the Secretary of State in relation to any of its policies which are inconsistent with national policies. The current London Plan was published, under s337, as the final phase of the process in March 2016, before the Mayoral election of that year.
The London Plan must be kept under review, as provided for by ss339–340. A revised draft London Plan has been published for consultation following such a review, and the replies are being considered. The next stage is that it will be sent to the Secretary of State for examination in public, with whatever amendments the Mayor makes in response to that consultation process; it will follow the same process in effect as the current Plan.
There is no statutory power which expressly deals with SPG issued by the Mayor of London or Greater London Authority, GLA. It was not at issue but that the GLA or Mayor could produce SPG. The GLA has the power in s30 “to do anything which it considers will further any one or more of its principal purposes.” This was the power principally put forward; its exercise requires consultation with various bodies and persons; s32. S34 contains a general power to do that which “is calculated to facilitate, or is conducive or incidental, to the exercise of any functions of the Authority….”
The statutory provisions are different for local planning authorities in England, including London. They are empowered by s19 Planning and Compulsory Purchase Act 2004 to issue local development documents which are not development plan documents. These include Supplementary Planning Documents, SPD; the procedure, laid down in the Town and Country Planning (Local Development) (England) Regulations 2004 for issuing them includes consultation but not examination in public; SPD must also be in conformity with development plan documents. The Secretary of State, in the National Planning Policy Framework, at [153], said that such SPDs “should be used where they can help applicants to make successful applications…and should not be used to add unnecessarily to the financial burdens on development.” The Secretary of State has himself issued Planning Policy Guidance, supplementing his NPPF, saying that SPDs “should build upon and provide more detailed advice or guidance on the policies in the Local Plan”. This does not apply in terms to SPG issued by the GLA.
Second, development control powers. Development control is a principal mechanism whereby SPG is given effect, although the Borough Councils are the development control authorities for applications for planning permission for housing developments, at least in the first place. Under the Town and Country Planning (Mayor of London) Order SI 2008 No. 580, articles 4 and 5 require a local planning authority to send copies of applications for development of “potential strategic significance”, or PSI, to the Mayor. PSIs include the development of more than 150 houses or flats. The Mayor may direct that the local planning authority refuse an application under article 6, if he considers that to grant permission would be contrary to the London Plan “or prejudicial to its implementation” or “otherwise contrary to good strategic planning in Greater London.” In so doing, he must consider the effect which granting permission would have on the health of persons in Greater London. Alternatively, he may direct under article 7 that he and not the local planning authority shall determine the application. In deciding whether to do so, the Mayor has to consider whether the local planning authority is meeting the housing targets, and the affordable housing targets, in the development plan.
SPG, like an SPD, is not part of the statutory development plan, and the force of s38(6) Town and Country Planning Act 1990 does not apply to it: if lawful, it is merely a material consideration to which regard may be had; it is not a document with which development control decisions must accord unless material considerations indicate otherwise. Nonetheless, as a material consideration, it is relevant to the development control decisions taken by the Borough Councils, at least whenever the policies of the London Plan to which it relates are relevant to the decision in question.
The London Plan policies and the SPG
First the 2016 London Plan. Policy 3.11 deals with affordable housing targets. It emphasises the need to maximise affordable housing provision, providing at least 17000 more affordable homes per year in London. Boroughs should set overall affordable housing targets in their Local Development Frameworks, taking account of a variety of factors including housing requirements identified in line with London Plan policies, meeting the range of housing targets set out in the London Plan, SPG and the Mayor's Housing Strategy, and the viability of future development. The supporting text to this policy said that the Mayor would engage with the Boroughs in the setting of affordable housing targets which would be in general conformity with the London Plan's strategic targets. “Supplementary guidance will provide indicative guidance on the approach set out in Policy 3.11 to inform the process.” I note the reference to SPG in policy and supporting text. There was SPG, but it was superseded by the SPG produced by the new Mayor, which is contentious in this case.
Policy 3.12 is headed “Negotiating affordable housing on individual private residential and mixed use schemes: Planning decisions and LDF preparation”. It is the crucial policy for this purpose. I set it out in full:
“A The maximum reasonable amount of affordable housing should be sought when negotiating on individual private residential and mixed use schemes, having regard to:
a) current and...
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