COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
MR JUSTICE OUSELEY
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
MR JUSTICE NELSON
| The Queen on the application of|
J A Pye (Oxford) Ltd, Bellway Homes Ltd
and The Housebuilders Federation
|- and -|
|Oxford City Council||Respondent|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robert McCracken and Adam Solomon (instructed by Oxford City Council Legal and Corporate Services) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Pill:
Local Plan Policies for affordable housing should:
- Indicate how many affordable homes need to be provided throughout the plan area including the different types of affordable housing needed by households of different characteristics, taking account of rural as well as urban needs(
- Identify suitable areas and sites on which affordable housing is to be provided and the amount of provision which will be sought.
It is common ground that the community’s need for affordable housing is a material planning consideration which may be taken into account when formulating development plan policies and in determining planning applications.
“On larger housing sites proposed in HO 1 and HO 2 the Council may seek an agreement to achieve a reasonable mix and balance of house types and sizes to cater for a range or housing needs, including a significant element of social housing”
The explanatory matter which accompanies the policy provides:
“3.36 Planning Policy Guidance Note 3 advises against imposing a general quota, suggesting that the proportion should be site specific and depend upon particular market conditions. In order to satisfy the need identified by the Council, based on the present breakdown of tenure in the City, the size of the housing register and the incidence of homelessness, 50% of new housing would need to be social housing. This is the target set by the Council for the Blackbird Leys development. However, targets for individual sites must be realistic, and experience suggests that in normal circumstances the Council can look for a minimum of 20% of the housing units being affordable.
3.37 This policy will not be automatically applied to all sites, since situations may arise where applying such a policy would inhibit the achievement of other important planning policies, such as the redevelopment of a badly sited industry. Full account will also have to be taken of special infrastructure costs associated with a particular site and, not least, the stage already reached in the planning process.
3.38 Bearing in mind the concentration of housing problems in Oxford the Council will give sympathetic consideration to housing proposals as an exception to normal Local Plan policies where a significant element of social housing is proposed. It should be noted however that the including of social housing will not necessarily override important policy objections, including the Structure Plan policy limitation on housing provision. The Council will also have regard to other material considerations including other planning gains such as those set out in HO 2. Whether this policy will be applied and in what form will depend on the precise circumstances of each site.”
The explanatory material also provides that the Council prefer the term social housing to the term affordable housing used in the Circular because they will normally be seeking subsidised housing. The concepts can, for present purposes, be treated as the same.
(1) A local planning authority may at any time prepare proposals...
(a) for alterations to the local plan for their area; or
(b) for its replacement.
“ The Government remains fully committed to the plan-led system, given statutory force by section 54A of the Town and Country Planning Act 1990 (“the 1990 Act”). Where an adopted or approved development plan contains relevant policies, section 54A requires that an application for planning permission or an appeal shall be determined in accordance with the plan, unless material considerations indicate otherwise. This provides a framework for rational and consistent decision making. It also provides a system which enables the whole community-business, other organisations, and the general public - to be fully involved in the shaping of planning policies for their area, through public participation processes.
1.2 The plan-led system can only be successful and command public confidence if plans are in place and are kept up to date. ...”
“As indicated above, policies in development plans should concentrate on those matters which are likely to provide the basis for considering planning applications or for determining conditions to be attached to planning applications or for determining conditions to be attached to planning permissions. Excessive detail should be avoided. Local authorities should therefore consider the use of supplementary planning guidance as a means of setting out more detailed guidance on the way in which the policies in the plan will be applied in particular circumstances or areas.”
“3.15 Supplementary planning guidance (SPG) does not form part of the plan. It can take the form of design guides or area development briefs, or supplement other specific policies in a plan. SPG must itself be consistent with national and regional planning guidance, as well as the policies set out in the adopted development plan. It should be clearly cross-referenced to the relevant plan or proposal which it supplements. It should be issued separately from the plan and made publicly available; consultation should be undertaken, and the status of the SPG should be made clear. SPG should be reviewed on a regular basis alongside reviews of the development plan policies or proposals to which it relates.
3.16 While only the policies in the development plan can have the status that Section 54A of the 1990 Act provides in deciding planning applications, SPG may be taken into account as a material consideration. The Secretary of State will give substantial weight in making decisions on matters that come before him to SPG which derives out of and is consistent with the development plan, and has been prepared in the proper manner. SPG should be prepared in consultation with the general public, business, and other interested parties and their views should be taken into account before it is finalised. It should then be the subject of a council resolution to adopt it as supplementary guidance. ...
3.17 SPG can play a valuable role in supplementing plan policies and proposals. However, it is emphasised that SPG must not be used to avoid subjecting to public scrutiny, in accordance with the statutory procedures, policies and proposals which should be included in the plan. Plan policies should not attempt to delegate the criteria for decisions on planning applications to SPG or to development briefs.
3.18 Before preparing SPG, local authorities may find it useful to discuss its proposed scope and content with the appropriate Government Office for the Region. ...”
That guidance accords with the concept of a plan-led system. SPG is to be consistent with the local plan. A system is not truly plan-led if the policies in a duly adopted local plan can be nullified by less formal procedures such as SPG. Local plan policies may, however, be drafted so as to permit some flexibility in their application and there is clearly a role for SPG in supplementing such policies.
“Social Housing – Housing Committee has recently indicated its concern about the lack of suitable land for social housing. The only large site potentially available that has been identified so far is the safeguarded land west of Barton, which presents many difficulties to develop. Otherwise existing policies need to be reviewed to ensure the maximum amount of social housing is produced. However, in my view, the problem is equally one of the financial resources as of land scarcity. In any event the issue of land availability is only likely to be solved beyond the City’s boundaries.”
“This review of social housing policies in the Oxford Local Plan in intended to:-
- better define social housing in Oxford for planning purposes;
- establish how many units of various types of social housing are likely to be needed throughout the plan period (2001-2011);
- change the threshold for social housing to require contributions from sites in existing residential areas with a capacity of 15 or more dwellings (continue to seek contributions from sites of any size in other areas);
- incorporate from recently produced Supplementary Planning Guidance the Council’s intention that, subject to site thresholds, housing developments should provide 30% of total units on site as social housing;
- incorporate from recently produced Supplementary Planning Guidance the provision, in exceptional circumstances, to take off site social housing contributions equivalent to 43% of market housing proposed; and
- provide a clear basis for reviewing the Council’s Supplementary Planning Guidance (SPG) on Social Housing.”
“26. It is proposed in the light of housing need in Oxford that suitable sites (i.e. those with a capacity of 15 or more dwellings in residential areas and all sites elsewhere) shall be developed to provide 30% social housing units and 70% market housing. The 30% gives a ration of social to market housing of 3:7 making social housing 43% of market housing. This 43% gives the basis for determining off site contributions as well.
27. Combining a), b) and c) above will require a policy in the next Oxford Local Plan which normally seeks to secure 30% on site social housing where housing is permitted on appropriate sites. The policy will need to have limited flexibility to provide for other considerations such as unusually high development costs, or the securing of other benefits and to deal with exceptional circumstances where off site contributions (at 43% of permitted market housing units) may be allowed.”
“PROPORTION OF SOCIAL HOUSING
Where a social housing contribution in required, the Local Plan states in paragraph 3.36 that in order to satisfy the need identified by the Council, based on the present breakdown of tenure in the City, the size of the housing register and the incidence of homelessness, 50% of new housing would need to be social housing. The situation is now worse. Policy HO6 states that the Council will seek a significant element of social housing. The interpretation of significant needs to be considered in terms of current housing needs information and relevant material considerations. The Council therefore thinks it is reasonable to seek generally 30% of a proposed development to be provided as social housing on all suitable sites. This level of provision will help secure PPG3’s aim of creating mixed sustainable communities. This represents the appropriate application in present circumstances of the policy for a ‘significant element of social housing’. It is within the range envisaged by the indication of a minimum figure of 20% set out within the reasoned justification”
“The statute requires that a local plan shall formulate in such detail as the council thinks appropriate their proposals for the development and use of land: section 11 and Schedule 4, paragraph 11(2) of the Act of 1971. If a local planning authority has proposals of policy for the development and use of land in its area which it chooses to exclude from the plan, it is, in my judgment, failing in its statutory duty. An attempt was made to suggest that the non-statutory guidance in this case went only to detail, as to which the council is given a discretion. But the council provides the answer to this point: it speaks in its guidelines of its non-statutory policies. In the Court of Appeal, Dillon LJ demonstrated by his quotations from paragraph 3.2, 3.3 and 3.4 of the non-statutory guidelines that they do indeed, as the council itself says, contain matters of policy relating to the control of office development outside the central activities zone.
It was the duty of the council under Schedule 4 of the Act of 1971 to formulate in the plan its development and land use proposals. It deliberately omitted some. There was therefore a failure on the part of the council to meet the requirement of the Schedule. By excluding from the plan its proposals in respect of office development outside the central activities zone the council deprived persons such as the respondents from raising objections and securing a public inquiry into such objections.”
Lord Justice Mummery:
Mr Justice Nelson: