Secretary of State for Communities and Local Government v West Berkshire District Council & Anor, England and Wales Court of Appeal (Civil Division), Judgment, Law, casemine.com

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Attorney(S)

Mr R Drabble QC and Mr D Blundell (instructed by the Treasury Solicitor) for the Appellant
Mr D Forsdick QC and Mr A Mills (instructed by Legal Services at West Berkshire District Council) for the Respondents

Judges

LORD JUSTICE LAWS
LORD JUSTICE TREACY

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Secretary of State for Communities and Local Government v. West Berkshire District Council & Anor

Smart Summary

Factual and Procedural Background

This opinion concerns an appeal by the Secretary of State against a decision of Holgate J in the Administrative Court on 31 July 2015, following a rolled-up hearing of a judicial review claim brought by two planning authorities, West Berkshire District Council and Reading Borough Council, who are respondents to the appeal. The challenge concerned the lawfulness of a planning policy introduced by the Secretary of State in a Written Ministerial Statement ("WMS") made in Parliament on 28 November 2014.

The policy excluded developments of 10 units or 1,000 square metres or less from affordable housing levies and tariff-based contributions, with a lower threshold of 5 units or less in designated rural areas, National Parks, and Areas of Outstanding Natural Beauty. It also provided for a 'credit' against affordable housing contributions where vacant buildings are brought back into use or demolished for redevelopment.

The policy aimed to address concerns that developer contributions placed a disproportionate burden on small-scale developers, inhibiting housing delivery. The Secretary of State introduced the policy following a consultation process in 2014, which received over 300 responses. Holgate J held the policy unlawful on four grounds and granted a declaration accordingly. The Secretary of State appeals that decision.

Legal Issues Presented

Whether the WMS policy was inconsistent with the statutory planning regime, particularly the primacy of local development plans under sections 38(6) of the Planning and Compulsory Purchase Act 2004 and 70(2) of the Town and Country Planning Act 1990.
Whether the Secretary of State failed to take into account necessary material considerations in formulating the policy.
Whether the consultation process undertaken before the WMS was legally adequate and complied with procedural fairness requirements.
Whether the Secretary of State breached the Public Sector Equality Duty under section 149 of the Equality Act 2010 by failing to properly assess the impact of the policy on persons with protected characteristics.

Arguments of the Parties

Appellant's Arguments

The WMS policy does not unlawfully override local development plans but is a material consideration to be weighed alongside them in accordance with the statutory scheme.
The Secretary of State was not required to include explicit exceptions in the policy wording, as the law permits unqualified policy statements provided discretion remains at the decision-making stage.
The Secretary of State's common law power to make planning policy does not impose statutory duties to consider specific matters beyond reasonableness, fairness, and good faith.
The consultation process was fair and enabled consultees to make intelligent responses; the phrase "disproportionate burden" was sufficiently clear and not confined to viability issues alone.
The Secretary of State conscientiously considered consultation responses and was entitled to form an independent judgment on their weight.
The Equality Statement produced post-decision complied with the Public Sector Equality Duty by acknowledging potential adverse impacts and placing them in the context of wider affordable housing provision.
The judge's detailed forensic analysis of the Equality Statement was inappropriate and amounted to an impermissible review of merits rather than compliance with procedural duties.
Quashing the decision solely because the Equality Statement was produced after the policy decision is not warranted where the assessment satisfies statutory requirements and no bad faith is alleged.

Respondents' Arguments

The WMS policy unlawfully purports to override local development plan policies by setting blanket thresholds without allowing for exceptions, contrary to the statutory scheme and established caselaw.
The Secretary of State failed to take into account obviously material considerations, including impacts on land supply and the Community Infrastructure Levy, in formulating the policy.
The consultation process was inadequate because it did not sufficiently explain the basis for the "disproportionate burden" concerns, thereby misleading consultees and depriving them of the opportunity to respond meaningfully.
The Secretary of State failed to conscientiously consider consultation responses, including evidence indicating a substantial negative impact on affordable housing provision.
The Secretary of State breached the Public Sector Equality Duty by failing to carry out an adequate equality impact assessment before making the policy decision, and the post-decision Equality Statement was inadequate and lacked an open mind.
The failure to assess the impact of the vacant building credit element and the inconsistent treatment of data on affordable housing contributions demonstrated non-compliance with the Equality Duty.
The policy should be quashed because the Equality Statement was produced retrospectively and cannot cure the initial failure to comply with the duty.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Alconbury Developments Ltd v Secretary of State [2003] 2 AC 295	Clarification of the statutory presumption in favour of development plan policies and the need to weigh material considerations.	Used to illustrate that the WMS policy must be considered as a material consideration and not override local plans.
City of Edinburgh Council v Secretary of State [1977] 1 WLR 1477	Interpretation of statutory predecessor to s.38(6) confirming the presumption that the development plan governs decisions unless material considerations indicate otherwise.	Supported the principle that the development plan is a starting point but not an absolute rule.
Cala Homes (South) Ltd v Secretary of State [2011] EWCA Civ 639	Policy advice to local authorities must not instruct them to act unlawfully or disregard statutory development plans.	Distinguished the WMS policy as not instructing unlawful disregard but expressing policy in unqualified terms.
British Oxygen Co Ltd v Minister of Technology [1971] AC 610	Rule against fettering discretion requires decision-makers to consider individual cases.	Affirmed that policy-makers can express unqualified policies, but decision-makers must remain open to exceptions.
R v Port of London Authority ex p. Kynoch Ltd [1919] 1 KB 176	Classic authority on the rule against fettering discretion.	Reinforced the principle that discretion must not be rigidly applied without consideration of exceptions.
First Secretary of State v Sainsbury's Supermarkets Ltd [2005] EWCA Civ 520	Planning policy is a guide, not a rule, and must be applied flexibly.	Supported the approach that the WMS policy is a material consideration subject to weighing.
Padfield v Minister of Agriculture [1968] AC 997	Statutory discretion must be exercised to promote the policy and objects of the Act.	Used to underline limits on policy-making powers to avoid frustration of statutory aims.
R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697	Common law powers do not carry the same duties as statutory powers; no duty to consider particular matters unless fairness requires.	Supported the argument that Secretary of State was not obliged to consider specific material considerations beyond core values.
R (Moseley) v Haringey LBC [2014] 1 WLR 3947	Criteria for lawful consultation including giving sufficient reasons and conscientious consideration of responses.	Applied to assess adequacy of consultation process and Secretary of State's consideration of consultation responses.
R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213	Consultation requires clear communication of proposals sufficient to enable an intelligent response.	Referenced to evaluate whether the consultation was misleading or unfair.
R (London Criminal Courts Solicitors' Association) v Lord Chancellor [2014] EWHC 3020 (Admin)	Procedural fairness in consultation requires disclosure of material information enabling meaningful responses.	Distinguished from present case as involving more serious consultation failure.
R (Maureen Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin)	No obligation to consult on every item of detail when multiple options exist.	Supported the view that detailed explanation of why a 3-unit threshold was not adopted was not required.
R (Unison) v Lord Chancellor (No 3) [2015] EWCA Civ 935	Equality Impact Assessments (EIA) are working tools to ensure due regard is paid, not forensic documents.	Supported the standard of review for compliance with the Public Sector Equality Duty.
Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345	Due regard requires proper focus on equality criteria but courts should not substitute their merits assessment.	Applied to assess adequacy of the Equality Statement and the decision-maker's compliance with the duty.
R (C (a minor)) v Secretary of State for Justice [2008] EWCA Civ 882	Failure to carry out required Equality Impact Assessment before decision-making can justify quashing.	Considered in relation to the timing of the Equality Statement and whether retrospective assessment suffices.

Court's Reasoning and Analysis

The court first addressed the primary legal issue of whether the WMS policy was inconsistent with the statutory planning regime. It emphasized that under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990, decision-makers must determine planning applications in accordance with the development plan unless material considerations indicate otherwise. The court held that the WMS policy, expressed in unqualified mandatory terms, did not purport to override local development plans but was properly regarded as a material consideration. The absence of explicit language stating the policy's subordination to local plans was not fatal, as the law permits policy-makers to articulate policies in absolute terms, with the rule against fettering discretion ensuring that decision-makers retain flexibility to consider exceptions.

Regarding the failure to take into account material considerations, the court found that the Secretary of State exercised a common law power to make policy, which does not impose the same statutory duties as a statutory discretion. While the statutory planning context constrains the policy to avoid frustrating statutory aims, the Secretary of State was not obliged to consider every specific factor identified by the judge below. The court concluded there was no failure to consider material considerations in formulating the WMS policy.

On the consultation ground, the court held that the consultation document sufficiently described the proposal and its rationale to enable consultees to make intelligent responses. The phrase "disproportionate burden" was not confined to viability issues, and the breadth of consultation responses demonstrated fairness. The Secretary of State was entitled to weigh responses and form an independent judgment. The court disagreed with the judge's conclusion that the consultation was unfair or that the Secretary of State failed to conscientiously consider responses.

Concerning the Public Sector Equality Duty, the court analyzed the Equality Statement produced after the WMS. It acknowledged that the Statement addressed potential adverse impacts on protected groups and placed them in the broader context of overall affordable housing provision. The court found that the Statement satisfied the statutory requirements for due regard, rejecting the judge's more stringent and forensic approach. The court also considered the timing of the Equality Statement, concluding that retrospective assessment may suffice where it is adequate and made in good faith, and that quashing the policy on this basis alone was not warranted.

Holding and Implications

The court ALLOWED the appeal and overturned the decision of Holgate J, thereby upholding the lawfulness of the Secretary of State's Written Ministerial Statement policy.

The direct effect of this decision is that the WMS policy excluding small-scale developments from affordable housing contributions remains valid and enforceable. The ruling clarifies that national planning policies expressed in unqualified terms do not unlawfully override statutory local development plans but are material considerations to be weighed in decision-making. The court also confirms the legal standards applicable to consultation processes and compliance with the Public Sector Equality Duty in the context of planning policy formulation. No new precedent altering established principles was created; rather, the court applied existing legal principles to the facts of the case.