Communities Secretary wins appeal over policy on affordable housing and small sites

The Secretary of State for Communities and Local Government has won an appeal over a ruling that a planning policy issued in relation to affordable housing and small-scale sites was unlawful.

The policy was announced in a written ministerial statement made in Parliament on 28 November 2014. The policy was:

"(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." (emphasis provided by Mr Justice Holgate in the Hight Court)

Mr Justice Holgate upheld a challenge to the written ministerial statement brought by West Berkshire and Reading Councils on four grounds.

1. It was inconsistent with the statutory planning regime.

2. The Secretary of State had failed to take into account necessary material considerations.

3. The Secretary of State's consultation upon the proposals was legally inadequate.

4. The Secretary of State had failed properly to assess the impact of the proposal upon persons with protected characteristics: Equality Act 2010 s.149.

The Court of Appeal (in a joint ruling from Lord Justice Laws and Lord Justice Treacy, with the Master of the Rolls agreeing) today (11 May) concluded in Secretary of State for Communities and Local Government v West Berkshire District Council & Anor [2016] EWCA Civ 441 that all four grounds of appeal should succeed.

In a statement the two local authorities said: “West Berkshire and Reading Councils are naturally disappointed by this result. We are reviewing this verdict and currently considering our options as a matter of priority with regard to appeal. Until such time as we have determined how we intend to proceed, it would not be appropriate to comment further.”

In-depth analysis of the ruling will appear on Local Government Lawyer in due course