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All NPPG affordable housing thresholds and exemptions have been quashed

Former Member, modified 8 Years ago.

All NPPG affordable housing thresholds and exemptions have been quashed

http://www.bailii.org/ew/cases/EWHC/Admin/2015/2222.html

 

http://www.planningresource.co.uk/article/1358474/affordable-homes-threshold-vacant-building-credit-quashed-high-court-ruling?bulletin=legislation-policy-bulletin&utm_medium=EMAIL&utm_campaign=eNews%20Bulletin&utm_source=20150803&utm_content=www_planningresource_co_uk_art

 

 

Affordable homes threshold and vacant building credit quashed by High Court ruling

3 August 2015 by Court reporter , 4 comments

A policy to exempt small developments from affordable housing contributions and the controversial vacant building credit have been removed from the government's national planning practice guidance following a High Court ruling on Friday.

Reading Borough Council and its neighbour West Berkshire District Council had sought to persuade the High Court to quash the planning guidance which exempts small development sites from the need to have affordable housing included on them.

The two councils claimed that the new policy, introduced in a ministerial statement last November, would drastically reduce the amount of affordable housing across the country by more than 20 per cent.

And they claimed that it would have a particular impact in their areas, as well as providing a windfall to landowners and developers.

On Friday they won the backing of one of the High Court in their fight to retain the need for affordable housing to be included on smaller sites.

Mr Justice Holgate quashed the policy, which excluded developments of ten homes or fewer, or 1,000 square metres or less, from the requirement to provide or contribute to affordable housing provision. In rural areas, a lower threshold of five homes would apply.

The judge ruled that the policy was "incompatible" with the statutory planning framework.

And, as a result of his decision he ordered that the government to pay the councils' £35,000 legal costs run up in bringing the case to court.

The authorities had argued that the policy would result in a loss of 21 per cent of affordable housing contributions across the country, but would have a particular impact in Reading, where tight restrictions on development including the green belt mean that a significant amount of new housing is built on brownfield sites, which often small ones, and would therefore fall within the exemption.

Reading claimed that the policy would result in a loss of up to 30 much-needed affordable homes per year in its area, out of a target of 167. And the more rural West Berkshire council said it would lose almost a quarter of its affordable housing under the policy.

The government has now removed paragraphs from a section on planning obligations in the national planning practice guidance related to the small development policy and the vacant building credit.

Alan Law, West Berkshire’s executive member for planning said: "The decision to legally challenge the government on this issue was not taken lightly. The judgement handed down today confirms that the council were fully justified in challenging this policy change in order to deliver much needed affordable housing and safeguard funding for critical infrastructure such as education.

"This was a concern for council and by joining with Reading it was demonstrated that this issue was a cross party concern. Our Core Strategy, fully endorsed by the government’s planning inspector at a comprehensive set of hearings in 2012, allowed us to seek an affordable housing contribution on sites of 5 dwellings or more."

A Department for Communities and Local Government spokesman said: "We’ve got Britain building and we’re determined to maintain this momentum, including by reducing the red tape and extra costs that prevent smaller developments from getting built.

"We are disappointed by the outcome of the judgement and will be seeking permission to appeal against the judge’s decision. This will have a disproportionate impact on smaller builders who are important in providing homes for local communities."

R on the Application of West Berkshire District Council v Department for Communities and Local Government. Case Number: CO/76/2015

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Amazing quote from DCLG given the jjudgement.
Andrea King, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts
Interesting the way the conclusion of the judgement refers to "the unlawfulness of the policy promulgated by means of the Written Ministerial Statement"!  No doubt this may have implications for other 'policy' amendments similarly introduced on the hoof through the back door via ministerial statements into the PPG rather than by amending/updating formal policy in the actual NPPF itself with appropriate public consultation (the December 2014 SuDS 'policy' requirement being another such example)!  The clouding of the water between what's a Government policy requirement and what's simply guidance has certainly become a grey area over the past year!
Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

We (Hambleton DC) recently adopted the 5-dwelling affordable housing threshold allowed for in the Ministerial Statement in our designated rural areas.  So we are now left with a policy that differs from the Development Plan's rural threshold of 2.

We probably need to go back to Cabinet and Full Council to resolve this problem locally but is anyone else in the same situation?

In the short-term I'm minded to deal with this by following S38(6) and attaching lesser weight to the policy we adopted on the back of the unlawful Ministerial Statement but would appreciate any thoughts from fellow sufferers.

Andrea King, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts
Our legal advisor has said that until we've had opportunity to properly review the judgement we shouldn't take any decisions that may be affected by planning obligations policy/guidance in former PPG paras.12-23.  With DCLG planning an appeal, it rather feels like we're all in limbo at present as potentially the deleted 'policy' and guidance in the PPG could presumably get reinstated again sometime further down the line!  I'm presuming the ministerial statement purporting to have introduced the 'policy' has effectively also been deleted from the parliamentary record as a result of the quashing too?
Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Thanks Andrea, we intend to take counsel's advice and will avoid making decisions in the interim.

I've just posted another comment on the issue of policy/guidance but I don't believe the Ministerial Statement has been deleted - it still online at https://www.gov.uk/government/speeches/small-scale-developers and I imagine it also remains as a parliamentary record.  On that basis it would appear the policy still exists even thought the guidance that flowed from it has gone.  It seems that was the compromise to prevent the judge quashing the Statement.  One for the lawyers to ponder in an idle moment perhaps.

Andrew Chalmers, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

Mark the Ministerial Statement remains but carries no weight.  The quashing order states clearly that the policies MUST not be treated as material considerations.  So they should not even be cited or referred to.  So the policy is dead not just the quidance.

"The dictum by Sullivan LJ stems from Article 9 of the Bill of Rights 1689, as interpreted in decisions such as Prebble v Television New Zealand Ltd [1995] 1 AC 321, 332 and 337; Hamilton v Al Fayed [2011] 1 AC 395; R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114 and R (Federation of Tour Operators) v HM Treasury [2008] STC 547.  I note that this point has not been raised by the parties in the present proceedings.  In any event, it would not appear, subject to submissions, that Parliamentary privilege would prevent the making of a quashing order in respect of (i) relevant parts of the NPPG, (ii) the Defendant’s decision to adopt the new policy by way of Written Ministerial Statement and (iii) the Defendant’s decision on 10 February 2015 to maintain his decision in (ii). Nor would it prevent the grant of a declaration by the Court that the policies in the Written Ministerial Statement must not be treated as a material consideration in development management and development plan procedures and decisions or in the exercise of powers and duties under the Planning Acts more generally."

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Yes it was a compromise to ensure that the Judge quashed the NPPG and as much else as he could as early as he could. 

This hearing was in April and the judgement took 3 months to deliver. 

The issue regarding Article 9 of the Bill of rights only emerged when the judgement was emerging and having lost so comprehensively DCLG played the constitutional card and

wanted judgement delayed until September.

On a sidenote, both sides used Landmark chambers

Andrea King, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts

There’s now an article on the Planner website http://www.theplanner.co.uk/news/councils-win-affordable-housing-battle-against-secretary-of-state?utm_source=Adestra&utm_medium=email&utm_term=  - interesting to note the key reasons for the decision:

  • the policy was inconsistent with the statutory scheme
  • an "unfair and unlawful" consultation process
  • a failure to take into account “obviously material” considerations, including the full implications for the supply of affordable housing land
  • breach of the public sector equality duty, particularly surrounding the impacts on disabled people and ethnic minorities who disproportionately rely on affordable housing
  • "irrationality".

Also interesting to read the reaction comments following the article, esp. the last two from Barton Wilmore and Pinsent Masons – extracts below:

  • "Because the approach is set out in a Ministerial Statement of Government policy, the Judge did not quash the policy; instead the effect of the judgement is to remove the tools by which the policy was brought into effect.  In practice, this has meant the Government announcing the intention to remove the relevant paragraphs of guidance from the online Planning Practice Guidance.  "At the heart of the judgement is a conundrum that many practitioners recognised at the time that the policy was announced – the attempt to alter statutory and policy provisions through hasty adjustment of the online Practice Guidance.  The Guidance is just that – guidance. It isn’t statute and it isn’t policy."
  • "The High Court's decision is a pivotal statement to ministers, local authorities and the wider property community. In this case, political expediency and desire failed to adhere to the basic premise of the planning system that ministerial statements are guidance and cannot supplant local plan policies.”
Rob Searle, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

New Member Posts: 6 Join Date: 30/09/13 Recent Posts
Andrea - I think the first of your quotes should be attributed to Barton Willmore (not JLL). JLL were a little less supportive of the decision and taking the DCLG line that it will discourage developers from bringing smaller sites forward. Something that there is little evidence from DCLG to support so far as I can see?
Andrea King, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Enthusiast Posts: 76 Join Date: 19/08/13 Recent Posts
Well-spotted Rob, thanks, I'd written Barton Wilmore first but obv got confused with the comments author of the previous comment just above - have amended my above post.
Andrew Chalmers, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

Andrea the minsterial statement still stays although no weight can be attached to it.

The legal judgement does deal with this and it was argued that the relief of quoshing the ministerial statement (even if that has been found to be illegal) raised significant constitutional issues.  However "Fortunately, the parties have confirmed that they agree that the Court can properly grant the relief summarised in paragraph 211 above without giving rise to any issues under Article 9 of the Bill of Rights or needing to involve other parties at this late stage. The Claimants have also stated that, upon reflection, the declaration I propose to grant provides them with sufficient relief in relation to the unlawfulness of the policy promulgated by means of the Written Ministerial Statement and that they do not need to ask the Court to consider quashing the Statement itself. Therefore, the interesting issues posed by the recent objection from the Defendant will have to await another case."

So we have the statement but it is worthless in law...

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
’The question is,’ said Alice, ‘whether you can make words mean so many different things.’
’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

We shall see how DCLG respond.

Andrew Chalmers, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

Yes the obvious approach is to return to the evidence based plan policy which I assume has been tested and found sound.  The thresholds have no weight at all based in the judgement.  So the simplest short-term approach is simply to say you are not applying any weight to that material consideration.

Interesting in its response that DCLG still peddles the complete myth, that the court found they were completely unable or unwilling to substantiate in its deliberations, that small sites are disproprortionately affected.  It is also extremely concerning that the court summary indicates very clearly that large amounts of underlying guidance to DCLG and evidence have been deliberately witheld and not made public, even to the Planning Court.  The only obvious conclusion is that it does not fit with the current "I believe therefore it must be true" DCLG approach to policy making.  I had hoped the loss of the previous SoS would have meant a return back to evidence based policy making alas I have yet to see it.

It is an extremely damming report of the way DCLG operates or at least politicians treat DCLG and the contempt they have for planning.  Only to be expected.

 

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Andrea, that is a very good point and it's not the first time the lines between Government policy and guidance have been blurred.

The change to PPG on considerations of sustainability in barn conversion under Class Q - which contradicts paragraph 6 of the NPPF (“The purpose of the planning system is to contribute to the achievement of sustainable development”) by requiring decision-makers to ignore sustainability didn't even have the benefit of a Ministerial Statement.

The “about” page in PPG - http://planningguidance.planningportal.gov.uk/about/ - doesn’t say how editorial control is exercised, other than confirming that PPG will be “updated as needed”.  The Government’s response to Lord Taylor of Goss Moor’s external review of planning guidance (December 2012) noted that it had consulted on "The role and responsibilities of ministers and the Chief Planner in deciding what to include within practice guidance and its implementation".  However, perhaps unsurprisingly, the Government’s response dodged the question.

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

An important lesson in all this is to remember the primacy of section 38(6) - as the judge said, national policy or a government announcement cannot simply override an adopted local plan policy or create an exemption such that a local plan policy need not be applied.  The government may try and undermine section 38(6), but at least the courts are holding the line.
Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

I would imagine that for the period the threasholds and exemptions were in place, sites were being valued on the basis that they would apply.

 

This might now mean that some developers have overpaid for sites, as they the threasholds and exemptions have been confirmed as unlawful.

 

The judgement suggests that ministers were advised at the time that the way the threasholds and exemptions were being introduced was potentially unlawful, but they introduced them anyway.

 

I wonder if such developers would now have recourse to seek compensation from Government?

 

The proposals were always flawed as affordable housing / contributions towards affordable housing can only be sought if it does not threatenen the viability of a scheme. So all the threasholds and exemptions could acheive was to make viable schemes more profitable. The Goverment suggested that housing / contributions towards affordable housing made viable schemes unviable. This is not true. The Government also suggested that the threasholds and exemptions would not reduce the delivery of affordable housing, this was also not true. So the policies were based upon untruths and were enacted in an unlawful manner. I really cannot see their grounds for appeal in this context.

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Developing Jonathan P's point further, most authorities will have lost a considerable amount of money by applying the ministerial statement.  In our case that affected not just affordable housing but also infrastructure contributions, at least for the period between November 2014 and April 2015.  Since that was the direct result of the Government's policy, now found to be unlawful, it might be worth pondering whether planning authorities are also due compensation?
Andrew Chalmers, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts
As much chance of compensation from DCLG as developers coming back in and saying "you know what we are feeling really generous now and wish to offer more".  Interesting comment about losses to developers who may have paid over the odds for land on the basis presumably because they budgeted too little for potential S106.  I suspect except in the most bouyant market areas most s106s are subject to negotiation, in my authority significantly downwards anyway, so it would probably be difficult via the black art of development appraisal to demonstrate conclusively what could have been obtained without the thresholds being imposed.
Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Yes all local authorities will have lost out but it would be interestering to know by how much.

Has anyone done the maths yet for what they have lost in their area?

 

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

At the time (Nov. 2014), I estimated the Ministerial Statement would result in my Council (upto CIL charging in April 2015) losing upto £155,000 in lost impact mitigations [£80,000 for educational facilities, £50,000 for recreational facilities & £25,000 for other infrstrcuture to support growth]
Andrew Chalmers, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts
We need to avoid falling into the DCLG trap of unsubstantiated claims...all authorities will have lost out. Not all authorities set thresholds so low, mine for one was unaffected by the change anyway.  Also in some authorities I assume S106 policies would have included viability get out clauses for flexibility so will probably not have achieved target levels of affordable housing.  Technically some authorities including mine would have been affected by the VBC issue but again if everything is down to viability it will be difficult to demonstrate effects of this policy change.  In our case only 1 application has been affected by VBC.  Little real point in doing the exercise - just take pleasure in DCLG being found so wanting in its policyy making as most of us have suspected for years - and hope it takes note for the future. 
Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

It looks like there is now a consensus of opinion that up to date adopted local plan policies take primacy and any national policy set out in Ministerial Statements should only be given weight as material considerations, not as policy which can override up to date adopted local plan policies.

 

Are there any view on how this impacts measures other than affordable housing exemptions and thresholds?

 

For example, the status of the March 2015 Statement on Housing Standards is now unclear; it sets out national policy in relation to Planning and Building Regulations, but based upon the court judgement, prior to all of the legislative changes detailed in the statement having taken place, will LPAs stick to their local planning policies (whilst giving some weight to the Ministerial Statement as a material consideration) until further notice? 

 

https://www.gov.uk/government/speeches/planning-update-march-2015

 

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

Jonathan

I agree there is consensus that the Development Plan has greater weight.  But it should always have been so - S38(6) of the 2004 Act and the commitment to a plan-led system in the NPPF should have been enough, even if Ministers seem to act as if they think otherwise.  It seems fairly commonplace in politics today to say you support something while taking contradictory action so maybe this isn't such a big surprise.  I have already gone on about the contradiction between what the NPPF says about sustainability being central to planning and what the NPPG says about it when it comes to PD barn conversions, so I'll resist the temptation to go there again.

On the housing standards, I think there is some recognition of the Development Plan in what Ministers have done. As I understand it, if a Council has a policy on space standards it can continue as before until the end of September and then must operate its policy with regard to the national standards. Considering that most of the housing we deal with is to national or regional designs, there is some sense in that and I doubt many LPAs can seriously claim to represent communities with unique space requirements, so we were probably all in the same place roughly speaking (and the national standards seem pretty close to ours anyway).

Perhaps one legacy of the West Berks & Reading case is that it will encourage more challenges in future.  I doubt either Council had any idea how little attention Ministers had paid to evidence and legal advice until it all came out in court - and now we know.

Former Member, modified 8 Years ago.

RE: All NPPG affordable housing thresholds and exemptions have been quashed

The NPPG has now been updated- one exemption has been retained in the guidance:

 

Paragraph number: 031

URI: http://planningguidance.planningportal.gov.uk/revisions/23b/031/

 

A new paragraph was added:

--- BEGIN NEW TEXT ---

Are there any circumstances where infrastructure contributions through planning obligations should not be sought from developers?

As set out in the Starter Homes Written Ministerial Statement of 2 March 2015, starter homes exception sites should not be required to make affordable housing or tariff-style section 106 contributions.

--- END NEW TEXT ---

 

This, as was the previous quashed guidance, is based upon a Ministerial Statement: https://www.gov.uk/government/speeches/starter-homes

 

Is the Government right to retain confidence in the contents this Ministerial Statement? I would assume many of the conclusions of the Court Judgement will also apply to the contents of this Statement and the weight to be attached to it?