West Berkshire District Council Reading Borough Council v Department for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWHC 2222 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/76/2015 |
[2015] EWHC 2222 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/76/2015
David Forsdick QC and Alistair Mills (instructed by Legal Service at West Berkshire Council) for the Claimants
Richard Drabble QC and David Blundell (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 29 th and 30 th April 2015
Introduction
The Claimants, West Berkshire District Council ("West Berkshire") and Reading Borough Council ("Reading") seek to challenge two decisions of the Secretary of State:-
(i) The decision on 28 November 2014 to make alterations to national policy in respect of planning obligations for affordable housing and social infrastructure contributions by way of a \ in the House of Commons (HCWS50);
(ii) The decision on 10 February 2015 to maintain those policy changes following the completion of an Equalities Impact Assessment ("EqIA").
The policy changes in the Ministerial Statement were accompanied by amendments to the National Planning Practice Guidance ("NPPG"). No alterations were made to the National Planning Policy Framework ("NPPF").
The Defendant has relied upon witness statements by Ms. Jane Everton, who is the Deputy Director: Planning – Economy and Society Division. Her team has lead responsibility for the NPPF. She is responsible for Government policy on the use of planning obligations under section 106 of the Town and Country Planning Act 1990 ("TCPA 1990"). In paragraphs 54 and 55 of her first witness statement, dated 10 March 2015, Ms. Everton explains that Ministers decided (with my emphasis added) that, proceeding by way of Written Ministerial Statement:-
(i) Developments of 10 units or 1000 sq m or less (including annexes and extensions) would be excluded from affordable housing levies and tariff based contributions;
(ii) A lower threshold would apply in designated rural areas, National Parks and Areas of Outstanding Natural Beauty (as defined in section 157 of the Housing Act 1985), with developments of 5 units or less to be excluded from affordable housing levies and tariff based contributions. Development of between 6 and 10 units would be subject to a commuted sum payable on or after completion;
(iii) Where a vacant building is brought back into use or demolished for redevelopment, local authorities will provide a "credit", equivalent to the floorspace of the vacant building, to be set against affordable housing contributions.
The Claimants are local planning authorities ("LPAs") for their respective administrative areas.
On 19 February 2015 Patterson J ordered that the Claimants' applications be considered at a rolled-up hearing which took place before me. I understand that a similar challenge has been brought by Islington London Borough Council, but an application for that to be heard together with the present proceedings was refused. I am therefore unaware of the arguments or evidence to be presented in the Islington case.
The policy context for the challenge
The NPPF published on 27 March 2012 "sets out the Government's planning policies for England and how these are expected to be applied…. It provides a framework within which local people and their accountable councils can produce their own distinctive local and neighbourhood plans, which reflect the needs and priorities of their communities" (paragraph 1 and see also the foreword of the Rt. Hon. Greg Clark MP, the then Minister for Planning).
Section 19(2)(a) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") requires that in the preparation of a development plan document, such as a local plan, the LPA must have regard to "national policies and advice contained in guidance issued by the Secretary of State".
In St Albans City and District Council v Hunston Properties [2013] EWCA 1610, [2014] JPL 599 (paragraphs 6, 25 and 26) and Solihull Metropolitan Borough Council v Gallagher Estates [2014] EWCA Civ 1610, [2015] JPL 713 (paragraphs 9 – 10), the Court of Appeal held that, according to the NPPF, local plans must meet objectively assessed housing needs unless "any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole" or "specific policies in this Framework indicate development should be restricted". The Court described the greater policy emphasis in the NPPF upon the provision of housing to meet objectively assessed needs as a "radical change" from the preceding national policy in PPS3 which had simply required local authorities to prepare strategies which balanced all material considerations, including need, demand and other policy matters.
Paragraph 17 of the NPPF sets out twelve core land-use planning principles which underpin plan-making and decision-taking. The first principle requires that planning should be "genuinely plan-led, empowering local people to shape their surroundings" by means of (inter alia) local plans which are kept up-to-date. The plan-led principle forms a fundamental part of the statutory scheme (section 70(2) of TCPA 1990 and section 38(6) of PCPA 2004). The third principle requires "every effort" to be made "objectively to identify and then meet the housing, business and other development needs of an area".
Policies for the delivery of housing are contained in paragraphs 47 to 55 of the NPPF. A key objective is "to boost significantly the supply of housing" by using an evidence base to ensure that the local Plan "meets the full, objectively assessed needs for market and affordable housing…", and by identifying and updating annually a supply of specific deliverable sites sufficient to provide 5 years worth of housing against their housing requirements (paragraph 47). In addition, each LPA has to produce a trajectory for the period covered by their local plan to show how both market and affordable housing will be delivered and the five year supply of land maintained on an ongoing basis (paragraph 47).
"Affordable housing" refers to accommodation for "households whose needs are not met by the market" (Glossary in Annex 2 to the NPPF). Such housing may take different forms, but a common feature in that the cost to the occupier is less than the market value of the dwelling.
Paragraphs 156 – 157 of the NPPF require each LPA to set out in their local plan strategic policies to deliver the homes and jobs needed for their area and to plan positively to meet those needs, using the evidence base described in paragraphs 158 to 161.
Paragraph 50 also requires LPAs to set policies for meeting affordable housing needs on site, i.e. as a proportion of the total number of dwellings to be built on a site. The aim of this longstanding policy objective is to help create mixed and balanced communities. It is well established that this is a legitimate planning purpose, because land is a finite, or even scarce, resource and it is necessary to ensure that it is made available for housing eligible persons who cannot afford to compete in the general housing market. Indeed, land scarcity relative to the need for housing may well cause the market value of residential land to rise, thereby reinforcing the justification for ensuring that residential development sites make appropriate contributions to the supply of affordable housing. Viewed in this way, a requirement to provide affordable housing to meet needs for such accommodation is a proper application of land use planning powers and not an unauthorised form of taxation (see e.g. R v Tower Hamlets LBC ex parte Barratt Homes Ltd [2000] J.P.L 1050, 1055–7, 1060–1061).
On the other hand, the formulation of local plan policies to secure contributions to affordable housing from residential development sites is constrained by economic realism. The provision of affordable housing is only one of the costs incurred in the development of a site in order to satisfy planning requirements. These costs may reach a point where development becomes unviable and therefore the site is unable to contribute towards meeting objectively assessed housing needs, whether general market or affordable housing. This constraint on policy-making is recognised in paragraph 173 of the NPPF:-
"173. Pursuing sustainable development requires careful attention to viability and costs in plan-making and decision-taking. Plans should be deliverable. Therefore, the sites and the scale of development identified in the plan should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened. To ensure viability, the costs of any requirements likely to be applied to development, such as requirements for affordable housing, standards, infrastructure contributions or other requirements should, when taking account of the normal cost of development and mitigation, provide competitive returns to a willing land owner and willing developer to enable the development to be deliverable."
Thus, local plan policies which require affordable housing to be provided are subject to viability testing before they are adopted, to avoid impeding the delivery of necessary development by imposing excessive policy burdens. This testing is usually carried out at a generic rather than site-specific level.
This approach to "deliverability" is applied in three further respects. First, an authority's...
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