The challenge
The Government was forced to make a u-turn on their policy in the Planning Policy Guidance of exempting schemes of 10 or less units or less than 1,000 sq m (GIA), from Affordable Housing and Tariff Style s106 obligations.
On Friday Mr Justice Holgate sitting in the Administrative Court in London handed down a decision in R (on the application of West Berkshire District Council and Reading Borough Coucil) v Secretary of State for Communities and Local Government [2015] EWHC 2222 (Admin). In this case West Berkshire District Council and Reading Borough Council sought to challenge the Ministerial Statement of 28 November 2014 to make changes to National Policy to exempt schemes of 10 or less units (or 1,000 sq m or less) from Affordable Housing and Social Infrastructure (Tariff Style obligations).
The grounds of challenge raised against the exemptions from delivery of Affordable Housing were (i) the National Policy was inconsistent with the Statutory Scheme and its purpose, (ii) the consultation carried out by the Secretary of State was unfair (iii) that the Secretary of State failed to take into account material considerations (iv) that the Secretary of State failed to comply with the public sector equality duty and (v) the decision was irrational. The challenge also considered the impacts of these grounds on Tariff Style Obligations and Vacant Building Credit. The LPAs gave evidence on the impact of these exemptions from policy on the delivery of their objectives and the conflict with their statutory development plans.
The outcome
All of the grounds of challenge were upheld not least because it was found that the policy was incompatible with the statutory framework and because the government was in breach of their public sector equality duty. The relief granted was a quashing order. The case could have given rise to some interesting administrative law considerations of whether the Courts can quash a ministerial statement but this seems to have been avoided for the time being by quashing the Planning Policy promulgated by the Ministerial Statement instead.
Generally the decision seems to be fairly critical of the lack of consideration given by the Department for Communities and Local Government (DCLG) as to the various impacts of this policy prior to its implementation. For instance that the decision to exclude schemes of 10 or less from Tariff based obligations was introduced to line up the position with those of self-builders in CIL chargeable authorities, without considering why it should apply to all schemes of 10 or less units not just self-builders as is the case in respect of CIL. Similarly with the Vacant Building Credit ministers were criticised for failing to consider that they had no information on the impact of this policy change, despite advice that this was necessary. Perhaps not the easiest position to defend.
Next steps…
For the DCLG a decision like this, raising the spectre that changes may need to be introduced through legislation rather than policy or at the very least properly thought out and consulted on, does not sit hand in hand with their aim of speeding up the planning system, particularly given the DCLG have been keen on such time ministerial statements of late. It is also an embarrassing volte-face forced on the DCLG, so it will be interesting to see where this goes next.
It leaves a situation where self-builders are in a better position in LPA’s which have introduced a CIL rather than in areas without one, given that they will now be liable for Tariff Style s106 obligations towards social infrastructure again. This minor loose end is outweighed from the LPA’s perspective by the considerable benefit to LPA’s in securing both Affordable Housing delivery, and in areas without CIL, retaining the ability to charge Tariff Style obligations on these smaller sites, subject to restrictions on pooling. The previous longstanding status quo has been restored for now at least.
If you would like to discuss the implications of the decision, please do not hestitate to contact us.
