R Skipton Properties Ltd v Craven District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 20 March 2017 |
| Neutral Citation | [2017] EWHC 534 (Admin) |
| Docket Number | Case No: CO/5521/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 March 2017 |
[2017] EWHC 534 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN LEEDS
Leeds Combined Court Centre
1 Oxford Road, Leeds LS1 3BG
Mr Justice Jay
Case No: CO/5521/2016
Gregory Jones QC and Caroline Daly (instructed by Walton & Co) for the Claimant
Michael Bedford QC (instructed by Solicitor to the Council) for the Defendant
Hearing dates: 7 th and 8 th March 2017
Judgment Approved
Introduction
By this application for judicial review, Skipton Properties Ltd ("the Claimant") challenges the decision of Craven District Council ("the Defendant") dated 2 nd August 2016 to adopt a document entitled "Negotiating Affordable Housing Contributions August 2016" ("NAHC 2016").
It is the Claimant's case that, pursuant to the Town and Country Planning (Local Planning) (England) Regulations 2012 [SI 2012 No 767] ("the 2012 Regulations") the NAHC 2016 was required to be adopted as a development plan document, alternatively as a supplementary planning document; and that the failure to comply with antecedent statutory conditions renders the purported adoption unlawful. Further, it is contended that the NAHC 2016 was adopted in breach of Directive 2001/42/EC ("the SEA Directive") and the Environmental Assessment of Plans and Programmes Regulations 2004 [SI 2004 No 1633] ("the SEA Regulations").
Before I examine the issues joined in the pleadings, I propose to set out the Essential Factual Background to this dispute as well as the governing legal framework.
Essential Factual Background
The Claimant is described in the Statement of Facts and Grounds as a local landowner and residential property developer. There is disagreement between the parties as to the scale of its operations. According to the witness statement of the Defendant's planning officer, Ms Sian Watson, dated 2 nd February 2017, "since … [2012] the Claimant's developments have (with one exception) involved sites of more than 10 dwellings". She draws my attention to planning applications made for 37 and 65 dwellings in May 2013 and July 2016 respectively. In December 2015 the Claimant sought planning permission for a development of 3 dwellings on a site in Cowling. Mr Brian Verity, the Claimant's managing director, does not contradict these basic facts, but states as follows:
"The changes made to the NAHC 2016, as compared to previous Council policy documents in respect of affordable housing, are also of direct interest to [the Claimant]. The introduction of vacant building credit and the requirement that off-site affordable housing contributions be provided in schemes of 6–10 dwellings in rural areas are both of relevance to [the Claimant's] commercial position in the area. Firstly, we are acutely aware of the fact that these two important policy changes will have an impact on the decisions made by all local housing developers in respect of the number, nature and location of sites to bring forward, which could have a profound effect on the housing market in Craven District Council. Secondly, the off-site contributions for 6–10 dwellings may well cause [the Claimant] to consider bringing forward smaller sites in the future."
The Craven District (Outside the Yorkshire Dales National Park) Local Plan was adopted in July 1999. Under the objectives section of the Housing Chapter, one such objective was "to encourage and enable the development of affordable housing for rent and purchase in locations where it is required including rural areas". Policy H11 ("Affordable Housing on Large/Allocated Sites in District and Local Services Centres") was deleted in September 2007 (or, put another way, was not expressly saved by the Secretary of State), leaving the Defendant without a policy in its adopted development plan for the provision of affordable housing (save in one very specific respect). I am told by Ms Watson that the Defendant is preparing a new local plan, but that it will not be submitted for independent examination by the Secretary of State until later this year.
On 29 th May 2012 the Defendant adopted the "Interim Approach to Negotiating Affordable Housing Requirements" ("IANAHR 2012"). It superseded the Affordable Housing Guide 2008 and stated, in so far as is material to this application:
"The Interim approach is to require affordable housing at 40% provision on sites of 5 or more dwellings, subject to site specific financial viability. Strategic Housing will provide guidance to applicants on how this will be delivered, including type, size and tenure issues.
…
Applicants would … be advised that the failure to make provision for affordable housing may be a reason that is used to refuse planning permission."
The IANAHR 2012 was subsequently updated, altered and expanded. A series of supplements to the original document were published in July 2012, January 2013 and August 2014. The original document and the supplements were then amalgamated into a single document in January 2015. A new version of this document with improved format and content was published in October 2015, entitled "Negotiating Affordable Housing Contributions (October 2015)". This document was further updated following the publication of the 2015 Strategic Housing Market Assessment, and a new version entitled "Negotiating Affordable Housing Contributions (December 2015)" ("NAHC 2015") was promulgated on 5 th January 2016. It should be noted that none of the post-IANAHR 2012 documents was separately adopted by the Defendant.
The NAHC 2015 contained the following statements:
"This document sets out the council's interim approach to negotiating affordable housing contributions, in connection with planning applications for residential development. The approach (which is not a development plan policy) was adopted for development control purposes by the Council's Policy Committee on 29 th May 2012. Guidance explaining the approach has been updated, improved and expanded over time. This latest version will be used as a stop-gap measure, by planning and housing officers, until an affordable housing policy has been prepared as part of the new local plan.
…
Our approach
In view of the above, the Council will commence negotiations with developers on the basis that, in developments of 5 dwellings or more, 40% of the units to be built on-site shall be affordable housing. On occasion, it may be appropriate to negotiate the payment of a cash-sum contribution, by the developer, in lieu of on-site affordable housing provision. All contributions will be subject to site-specific financial viability …"
The Defendant's "Draft Text, Policies and Policies Map with Sustainability Appraisal, Interim Report and Sustainability Appraisal of Policies Consultation Document", dated 4 th April 2016, forming part of the consultation process in respect of the new local plan, stated (in relation to proposed affordable housing guidance):
"The council will publish additional practical guidance on the provision of affordable housing in the form of a supplementary planning document (SPD). This will include guidance on the limited circumstances in which off-site provision or financial contributions will be considered in lieu of on-site provision."
On 19 th July 2016 the Defendant's Policy Committee received a report from the Strategic Manager for Planning and Regeneration which recommended a "revised approach" to negotiating affordable housing contributions in connection with planning applications for residential development. In November 2014 the Government had sought by Ministerial Statement to introduce changes to national policy on requiring affordable housing contributions from small sites. These changes were successfully challenged in judicial review proceedings, but the Government's position prevailed on appeal: see SSCLG v West Berkshire Council [2016] EWCA Civ 441, 11 th May 2016. According to the Defendant's draft NAHC 2016 (appended to the July 2016 report):
"3.2 The main effects of national affordable housing policy and guidance are as follows:
• A new national site-size threshold has been introduced. Local Planning Authorities should no longer seek affordable housing contributions from developments of 10 dwellings with a maximum combined floor space of 1,000 sqm or less.
• In designated rural areas … authorities may choose to implement a lower threshold of 5 dwellings or less, but only cash contributions (as opposed to on-site provision) should be sought from developments of 6–10 dwellings.
• Vacant building credit has been introduced. Authorities should apply the credit where developments include the re-use or re-development of empty buildings, so that affordable housing contributions relate only to net increases in floor space.
3.6 Paragraph 3.2 above, explains that changes to national policy and guidance are intended to lift the burden on small developers. It should be noted, therefore, that replacing the 5 dwelling threshold, adopted in 2012, with a 6 dwelling threshold will represent an improvement for landowners for landowners and developers in designated rural areas … It is therefore considered that the recommendations of paragraphs 2.1 to 2.3 above, are likely to support the appropriate development of new homes, by small developers, in rural areas."
I should add that the Defendant has not yet amended its draft local plan (see paragraph 9 above) to reflect the Court of Appeal's decision. The position adopted in the draft NAHC 2016 (and, indeed, the final version) may not necessarily be reflected in the next draft of the local plan.
The principal change between the NAHC 2015 and the NAHC 2016 was explained at paragraph 3.3 of the July 2016 report:
"The revised approach and guidance, contained in the appendix to this...
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