The four claimants were developers of specialist housing for the elderly. The statutory planning powers in section 334(1) of the Greater London Authority Act 1999 required the mayor to produce a “spatial development strategy” known as the London Plan, which by sections 339–340 had to be kept under review. Following publication of the draft London Plan in 2016, the mayor issued supplementary planning guidance (“the SPG”) on how affordable housing developments or contributions in lieu should be negotiated on the grant of planning permission for housing developments. Policy H6 of the draft plan was largely equivalent to the SPG. The claimants sought judicial review contending, inter alia, that the SPG was unlawful in that it constituted policy which could only be produced in the London Plan following the procedure in section 335 of the 1999 Act, and was inconsistent with that plan.
On the claim—
Held, claim allowed. (1) Applying section 334 of the 1999 Act, the SPG constituted general policies, at least for the time being. That was exactly what the mayor had proclaimed them to be by including them in policy H6 in the draft plan. They had been made policy so that the weight of section 38(6) of the Planning and Compulsory Purchase Act 2004 could be brought to bear on them. The SPG had been issued as such so that the desired change of approach could be implemented as soon as possible without waiting for its possible appearance in the more wide-ranging review of the London Plan. There was no distinction in that respect between the status of the “guidance” in the SPG and the “policy” in the draft London Plan. Such similar approaches could not have different status. They amounted to detailed advice about how to conduct the negotiations for affordable housing contributions envisaged by the London Plan (paras 29–31, 33).
(2) Production of the SPG as policy when issued did not of itself render it unlawful on that account. Nor did conflict with development plan policy of itself make a non-statutory document unlawful. If it stated that it was in conflict with the development plan because that plan was out of date, that was no basis for it to be unlawful, although the weight to be given to it was another matter in the light of section 38(6) of the 2004 Act. If an authority sought to put forward some policy to cover the period when the development plan was out of date, which could happen very quickly with new government policy, that was no reason to hold its actions unlawful (paras 35, 36, 42).
(3) Here the mayor clearly had not intended to produce SPG in conflict with the London Plan, let alone to avoid the development plan process. However, on the facts the SPG was inconsistent in certain respects with the existing London Plan. To that extent the mayor had misdirected himself as to the meaning and effect of either the plan or the SPG and so had failed, in promulgating it, to have regard to a material consideration. The SPG was accordingly unlawful on that basis (para 41).
Per curiam. The line between guidance and policy is not a bright line, particularly when it comes to an assessment of the level of detail appropriate for a plan. There is nothing wrong with one planning authority taking the view that, for it, an issue requires the force of section 38(6) of the 2004 Act to be applied, and so its policy is promulgated as a development plan policy, while another authority or its successor could decide that precisely the same point was best left for guidance. Furthermore, although it is for the court to decide whether a document constitutes a policy which must or must not be in the spatial strategy, section 334 leaves considerable room for the court to respect the plan-maker’s judgment on what is to receive the weight of the development plan, or is too detailed for a spatial strategy, where that is the basis for the decision (paras 33, 34).
Rupert Warren QC (instructed by Lester Aldridge LLP) for the claimants.
Paul Brown QC (instructed by Transport for London) for the mayor.