The Government’s decision, announced by way of written ministerial statement and effected by amending National Planning Practice Guidance, to make alterations to the national policy for the provision of affordable housing, was unlawful.

Holgate J so held in allowing a claim by the claimants, West Berkshire District Council and Reading Borough Council, for judicial review of the decision of the Secretary of State for Communities and Local Government 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 written ministerial statement and to maintain those policy changes following the completion of an equality impact assessment.

The new policy allowed small scale development sites to be excluded from affordable housing levies and tariff based contributions. It also provided that where a vacant building was brought back into use or demolished for redevelopment, local authorities were required to provide a “credit”, equivalent to the floorspace of the vacant building, to be set against affordable housing contributions. The policy changes in the ministerial statement were accompanied by amendments to the National Planning Practice Guidance (“NPPG”).

HOLGATE J said that the substance of the national policy published in November 2014 was materially different from previous national policies. Previous policies simply gave “criteria” or “indicative thresholds” which local planning authorities were to take into account when formulating local plan policies. They were consistent with the statutory framework and sought to give guidance to and “influence” individual authorities when drawing up policies in their local plans for affordable housing requirements appropriate to their respective areas. The new national policy did not purport to give guidance to be considered alongside local plan policies. Rather it gave thresholds below which affordable housing (and tariff style contributions) should not be sought when any planning application for housing development in England was determined. Those thresholds were to be applied directly, and with immediate effect, in the determination of planning applications, notwithstanding any local plan policy inconsistent therewith. To that extent the policy had been drawn up so as to displace adopted local plan policies on affordable housing requirements. The ministerial statement was not devised so as to be taken into account alongside local plan policies in development control decisions or as guidance when new local plan policies come to be formulated. The Ministerial Statement did not envisage that authorities might prepare, justify and adopt local policies departing therefrom. Furthermore, the policy did not allow any transitional period within which adopted local plan policies would continue to be given full weight or primacy, or for authorities to consider whether their local plan policies should be revised in the light of new national guidance. The new national policy was inconsistent with the statutory scheme because its aim, and the language chosen, purported to confer exemptions in each and every case where affordable housing requirements in an adopted local plan policy were inconsistent with the national thresholds. A policy formulated in that way was improper because, in effect, it purported to override relevant policies in the statutory development plan in so far as they were inconsistent with the national policy. The purported effect of the new national policy on exemptions from affordable housing contributions was incompatible with the statutory framework of the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004 and therefore unlawful.

Furthermore, the consultation process gave insufficient reasons for the policy proposal so as to allow intelligent consideration and response and failed to take the product of the consultation conscientiously into account. Although the Secretary of State was exercising a common law power rather than one conferred by statute, that power was relied on in order to promulgate a policy within a statutory context and for the purposes of the relevant legislation. In adopting his policy the Secretary of State had failed to take into account a number of “obviously material” considerations. The beneficial purpose which ministers intended their policy to serve was to overcome the “stalling” of development on small sites, an issue relating to land supply. Adverse effects on land supply were equally and obviously relevant to a proper weighing of the benefits (or rather the net benefits) of the proposed policy. There was no evidence to suggest that that exercise had been carried out before the adoption of the policy in November 2014. Further, there had been a breach of the public sector equality duty under section 149 of the Equality Act 2010. Ministers did not assess the extent and risk of certain adverse impacts of the policy upon persons with protected characteristics. Accordingly, the relevant parts of the NPPG and the Secretary of State’s decision to adopt the new policy by way of written ministerial statement would be quashed.