Where policy meets statute: court backs minister

In Scotland, national policy is mostly set by the provisions of the Scottish Planning Framework and Scottish Planning Policy. In England & Wales, this may also be done by means of a written ministerial statement (WMS). Such an approach was adopted in the English case of R (West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441.

In terms of the November 2014 WMS, developments of 10 units or 1,000 square metres or less would be excluded from affordable housing levies and tariff based contributions. The reason for the WMS was that affordable housing policy as currently applied places a disproportionate burden on small scale developers and therefore discourages smaller housing developments from taking place. However, that policy was likely to have an adverse effect on local authority receipts in England & Wales. This prompted the action for judicial review.

The bases of the action were that (1) the correct housing figures were not taken into account; (2) the consultation process was flawed; (3) the WMS, being absolute in its terms, effectively sought to override development plan policies, which benefit from the statutory presumption in their favour; and (4) the policy was in breach of the public sector equality duty (PSED) as set out in the Equality Act 2010.

The Secretary of State appealed the judge's upholding of all four grounds and was successful in relation to each ground. The decision considers the nature of Government planning policy and its interaction with the underlying statutory scheme in the planning field. It also contains an important analysis of the scope of the obligations on decision-makers to carry out a lawful consultation, as well as the scope and application of the PSED.