R (on the application of J.A. Pye (Oxford) Ltd) v Oxford CC
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 26 October 2001 |
| Neutral Citation | [2001] EWHC 870 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 October 2001 |
| Docket Number | CO/1829/2001 |
[2001] EWHC 870 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Ouseley
CO/1829/2001
The Queen on the Application of
MR D HOLGATE QC and MR D FORSDICK (instructed by Messrs Masons, London
EC1R OER) appeared on behalf of THE CLAIMANTS
MR R McCRACKEN and MR A SOLOMON (instructed by the Legal & Corporate
Services, Oxford City Council) appeared on behalf of THE DEFENDANTS
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( )
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Friday 26 October 2001
INTRODUCTION
In 1997, Oxford City Council, the defendant, adopted its Local Plan for the period 1991 —2001. This Plan included various policies, with their reasoned justification, for the provision of affordable housing.
By mid 1999, the looming expiry of the adopted Plan, together with the number of issues which the new Plan would need to address, meant that the City Council began to consider the review of the Local Plan. These issues included the provision of affordable housing.
In 1998 a survey of housing needs had been carried out by the City Council which reinforced its concerns about the extent of the need for affordable housing, and a Government Circular "Planning and Affordable Housing", 6/98, aimed to provide a clearer framework than did its predecessor Circular, for plan policies dealing with affordable housing.
However, early in 2000, the City Council considered that the provision of affordable housing should be dealt with ahead of the Local Plan review by means of Supplementary Planning Guidance, "SPG". If this SPG satisfied the procedural and substantive requirements set out in the Government's Planning Policy Guidance Note 12, "PPG12", the Secretary of State would accord it significant weight in his decisions, and this would of course be of real value to the City Council in its dealings with developers, and in its own planning decisions.
The draft SPG was sent out for public consultation in March 2000. A variety of representations were made, including objections by the three Claimants in these proceedings. Two of them are well known housebuilders with development interests in Oxford and the House Builders Federation is an experienced and responsible body with nationwide planning and other interests.
The draft SPG was amended and a revised draft was sent out for further public consultation in February 2001. It attracted renewed objections along the same lines; the consultation process itself was again criticised, this time with greater vigour.
In April 2001, a further revised version of the SPG was adopted by the City Council; and in response, as threatened, these judicial review proceedings were commenced.
The Claimants contend in short that the City Council was duty bound to proceed with the policies now contained in its SPG, by way of statutory Local Plan review instead of by way of non-statutory SPG. They also contend that in so far as the City Council had a choice of routes along which to proceed with its policies, it made its choice without regard to material considerations. Those considerations included the degree of non-compliance of the SPG with PPG12, the unfairness to the Claimants of choosing a route which lacked the opportunity for independent scrutiny, and the possibility of a speedier Local Plan review of housing policies by taking housing as a topic in a partial review of the plan. The consultation process itself was also contended to be legally inadequate, principally because of the way in which the consultation responses were considered.
Before I turn to the contentions in detail it is necessary to examine some of the documents which underlie them.
PPG12 "DEVELOPMENT PLANS"
Much of the argument before me related to whether the SPG was consistent with PPG12, produced in December 1999. PPG12 contains Government guidance as to the roles of Local Plans and SPG, and Government's requirements for any SPG to be consistent with the Local Plan and current national policies if it is to be accorded significant weight.
This Guidance Note emphasises the importance of the plan-led system and the need therefore for development plans to be kept up to date through regular reviews conducted in an efficiently managed process. It refers in paragraph 2.23 to a full review of a plan every five years and says that "partial reviews may be appropriate (e.g. on particular topic areas) on a more frequent basis". Alterations, which are distinguished from a total replacement plan, are more likely to be appropriate where a partial rolling forward of the plan is needed, or where forecasts or assumptions have changed or where unforeseen issues arise necessitating new policies.
The PPG deals with SPG in paragraphs 3.14 onwards. It urges that Local Plan policies should avoid excessive detail concentrating on the matters relevant to determining planning applications:
"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".
In paragraph 3.15, the role of SPG is discussed:
"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 regional 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 policy or proposal which it supplements".
The procedures which should be followed are then set out:
"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 prepared in consultation with the general public, businesses, and other interested parties and their views should be taken into account before it is finalised. It should then be the subject of a Council resolution to adopt it as supplementary guidance. On adoption a statement of the consultation undertaken, the representations received and the local authorities response to those representations should be made available with each copy of the SPG".
The significance of SPG thus prepared is in the weight which the Secretary of State would then give it. Paragraph 3.16 states:
"While only the policies and the development plan can have the status that Section 54A of the 1990 Act provides in deciding planning application, SPG may be taken into account as a material consideration. The Secretary of State will give substantial weight in making decisions on matters that come before him to SPG which derives out of and is consistent with the development plan and has been prepared in the proper manner."
Paragraph 3.17 sounds this note of caution:
"SPG can play a valuable role in supplementing plan policy and proposals. However it is emphasised that SPG must not be used to avoid subjecting to public scrutiny in accordance with the statutory procedures, policies and proposals which should be included in the plan. Plan policies should not attempt to delegate the criteria for decisions on planning applications to SPG or to development briefs."
Local authorities are advised to discuss any proposals for SPG with the Government regional office, as the City Council in fact did.
The Local Plan
Housing Policy HO1 deals with sites specifically identified as large housing sites (involving 20 or more dwellings). HO2 permits the redevelopment of sites from another use to housing where social housing, amongst other benefits, could be provided. HO5 provides:
"On larger housing sites proposed in HO1 and HO2 the Council may seek agreement to achieve a reasonable mix and balance of house types and sizes to cater for a range of housing needs, including a significant element of social housing".
HO6 provides:
"Where proposals are made for housing development involving twenty or more dwellings on a site not identified in policy HO 1 or involving any number of dwellings on a site outside the area defined in policy HO 3 and the development is compatible with other Local Plan policies the Council will consider granting planning permission if the proposals include a significant element of social housing and may seek an agreement to secure this".
The Claimants emphasised the seeking of agreements. Both sides relied on the debatable scope of "a significant element of social housing". The reasoned justification to both these policies was relied on by both sides, each emphasising differing aspects. The reasoned justification to HO5 provides:
"It is not proposed to impose a standard definition of affordable or social housing. Each planning application is likely to have its own peculiar circumstances and such matters would have to be the subject of negotiation. It can be indicated, however that the overall objective will be to secure dwellings at a rent or price that can be afforded by people who are in housing need and would otherwise be accommodated by the Council.
Whilst public sector provision meets housing need directly, private sector provision can have only an indirect effect as its effects filter down through the housing market. In situation like Oxford, where housing land is always going to be a scarce commodity, it would seem prudent to make the most effective use of it in terms of meeting housing need. This argument, and the relatively high price levels prevailing...
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