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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> J A Pye (Oxford) Ltd & Ors, R (on the application of) v Oxford City Council [2002] EWCA Civ 1116 (30 July 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1116.html
Cite as: [2002] All ER (D) 458, [2002] EWCA Civ 1116, [2003] JPL 45
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- This is an appeal against the judgment of Mr Justice Ouseley given on 26 October 2001 whereby he refused an application by J Pye (Oxford) Ltd and Bellway Homes Ltd, who are substantial house builders, and the Housebuilders Federation, collectively described as the applicants, against Oxford City Council (“the Council”). The relief sought was an order quashing the decision of the Council on 9 April 2001 to adopt Supplementary Planning Guidance on social housing, an order declaring that the Council was not entitled to adopt policies contained in the SPG as non-statutory policies and a declaration that the Council was under a duty to promote policies for social housing in a review of the Oxford Local Plan, including policies of the kind contained in SPG. The claim was dismissed.
- A planning issue which has attained considerable prominence in recent years is that of affordable housing. The Secretary of State issued Circular 6/98 entitled “Planning and Affordable Housing” and PPG 3: Housing (2000), of March 2000 stated at paragraph 15:
- 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.
- In September 1997, the Council adopted the Oxford Local Plan for the period 1991 to 2001. They complied with their duty under section 36(1) of the Town and Country Planning Act 1990 (“the 1990 Act”) to “prepare for their area a plan to be known as a local plan”. Section 36(2) provides that “a local plan shall contain a written statement formulating the authority’s detailed policies for the development and use of land in their area”. Section 36(6) provides, amongst other things, that the local plan “may contain such descriptive or explanatory matter as the authority think appropriate”. Regulation 7(1) of the Town and Country Planning (Development Plan) (England) Rules 1999 (No 3280) (“the 1999 Regulations”), made under the 1990 Act, provides that a local plan shall contain a reasoned justification of the policies formulated in the plan.
- Following a heading “Social/Affordable Housing”, Plan Policy H 05 provides:
- The present dispute has arisen because, in Supplementary Planning Guidance (“SPG”) adopted in April 2001, the Council have purported, it is claimed, to alter their policy in relation to social housing, alteration which could lawfully be achieved only by an alteration to the Oxford Local Plan. The power to alter a local plan is conferred by section 39(1) of the 1990 Act:
- The role of development plans, such as the Oxford Local Plan, in the planning system and the relationship to them of SPG is considered in PPG 12, issued by the Secretary of State in December 1999. Regulation 20(2) of the 1999 Regulations provides that, in formulating proposals in a local plan, a local planning authority shall have regard, amongst other things, to strategic planning guidance given by the Secretary of State. In paragraph 1.1, it is provided:
- Under the heading Plan Review, it is provided (paragraph 2.20) that the “plans should be as up-to-date as possible, particularly in view of their status in the determination of planning applications and as a means of encouraging development in appropriate locations”. It is stated (paragraph 2.21) that “plans should therefore be reviewed regularly. The timing and frequency of review will depend upon local circumstances, but effective monitoring of a plan can provide the necessary information on which a decision to review can be taken”. It is also provided (paragraph 2.23) that “while there are thus no hard and fast rules on how often a plan should be reviewed, it is expected that ... plans should be reviewed in full at least once every 5 years, and partial reviews may be appropriate (eg on particular topic areas) on a more frequent basis”.
- The possibility of SPG is introduced at paragraph 3.14:
- Under the heading “Supplementary Planning Guidance” it is then provided:
- Following the adoption of the local plan, the Council conducted, in 1998, a Housing Needs Study. It cannot seriously be questioned, in my view, that following a consideration of that study the officers of the Council wished to provide social housing in the city on a greater scale than that contemplated in the local plan. A local plan review was contemplated as early as a report to the planning committee on 14 April 1999. That is not surprising because the adopted plan was intended only to cover the period to 2001. The report listed in Appendix 1 the issues officers had identified. These included:
- Under the heading “Oxford Local Plan Review 2001-2011”, the officers produced “Issue Paper 2 Social Housing”. It included a summary:
- 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.”
- Under the heading “New Social Housing Policies” proposals were made under headings: (a) site suitability for social housing contributions, (b) site threshold for social housing contributions and (c) percentage of social housing secured on or off site. It is then stated:
- It is also stated in the paper that it should be read “in conjunction with the Council’s recently produced draft SPG on social housing”. Having first been mentioned at a meeting of the planning committee on 21 January 2000, SPG for social housing policies was submitted to the planning committee on 23 February 2000. The report stated that “the aim of this SPG is to secure social housing via the planning system in accordance with Government guidance and development plan policies”. The report stated that “the introduction of this SPG will require members, officers and developers to learn a new way of approaching social housing”. The Council conducted a consultation process upon the draft SPG. There was a period of inactivity of about six months followed by further consultation. The SPG was finally adopted on 9 April 2001.
- The main challenge is to paragraph 22 of the SPG. That provides:
- The percentage of a proposed development to be provided as social housing is obviously of considerable importance to builders such as the present applicants. Challenge is also made to those parts of the SPG dealing with the types of social housing to be provided (eg shared ownership) (paragraph 18), the formula proposed for financial contribution instead of the provision of housing (paragraphs 26 and 27) and the requirements as to the mix of housing by way of number of bedrooms per unit (paragraph 29). For the applicants it is accepted that if they do not succeed on their challenge to paragraph 22 they will also fail on the other paragraphs. The Council submit that, even if the applicants succeed on paragraph 22, they should fail on the other paragraphs.
- Though the decision in the present case does not turn upon it, more information about the local plan review is available now than was before the judge. On 28 June 2002, what is described as First Draft Oxford Local Plan 2001-2016 was deposited for public inspection and written objections and representations were invited. The need for affordable dwellings is said to be great and the current position is said to be worse than at the time of the Housing Needs Survey in 1998. Draft policy HS 6 provides that “In assessing the proportion of affordable dwellings to be provided on sites deemed suitable for such provision the proportion sought and secured, consistent with viability, will be generally a minimum of 50% of the dwellings”. The Court was told that the present programme provided for the adoption of the plan in 2006. The slippage in dates is an obvious feature of the plans. The plan for 1991-2001 was not adopted until 1997 and that for 2001-2016 is expected to be adopted in 2006. It is common ground that the plan for 1991-2001 remains the development plan until replaced but that an emerging plan is a material consideration in planning decisions. The weight to be given to it likely to become greater as it develops towards adoption.
- For the applicants. Mr Holgate QC, submits that it was beyond the powers of the Council to adopt the SPG in the circumstances and that, even if there was power to adopt an SPG, the one adopted was on its wording unlawful. Secondly, it is submitted that the procedure adopted by the Council was unlawful in that the SPG could not be lawful unless consideration had first been given to an alternative way of proceeding by way of alteration of the local plan. Thirdly, it is submitted that the contents of the SPG were unlawful as in conflict with planning policies and, fourthly, it was unlawful as having been adopted without adequate consultation with interested parties.
- There can be no doubt that the present intention of the Council is to secure the provision of more social or affordable housing. Equally, there is no doubt that the need for such provision is to be treated as a material consideration when planning decisions are taken.
- Mr Holgate bases his first submission on the provisions of section 36(2) of the 1990 Act which I have already set out. Policies for social housing, it is submitted, fall within the provisions of section 36(2) and have been recognised by the Council as falling within them. Policies appear in the adopted local plan and in the documents prepared with a view to its review including “Issue Paper 2 Social Housing” and the recently deposited draft plan. There follows from the duty to include policies in the local plan a duty not to include them in SPG.
- Reliance is placed on the decision of the House of Lords in Westminster City Council v Great Portland Estates plc [1985] AC 661. Under statutory provisions different from those now applicable, a local planning authority employed non-statutory guidelines for the development and use of land within its area with respect to office development. Lord Scarman, with whom the other members of the House agreed, stated, at p 674D:
- Mr Holgate adopts Lord Scarman’s concern about deprivation by reference to the comprehensive procedures to be followed in connection with the preparation, withdrawal, adoption, approval, making, alteration and replacement of development plans contained in the 1999 Regulations. The procedures include provision for a local inquiry to consider objections to a plan and an obligation on the authority, amongst other things, to prepare a statement of the reasons for any of their decisions which do not follow a recommendation contained in the report of the person holding the inquiry. The duty to include detailed policies in the plan is a continuing duty, it is submitted.
- The purpose of SPG is to supplement an adopted local plan and not to anticipate a revision of that plan or achieve a new plan. This SPG, it is submitted, purports to introduce what is acknowledged, for example in Issue Paper 2 Social Housing (paragraph 47), to be a new policy. If it was sought to introduce a new policy in the short term, that could have been done by a partial review of the local plan on a particular topic area, as contemplated in PPG 12 paragraph 2.23. Such a review could have been conducted in the time taken to adopt the SPG without depriving interested parties of the safeguards provided in local plan procedures.
- In considering the detailed wording of the SPG, Mr Holgate submits that the change from the range (minimum 20%) to the specific (generally 30%) amounts to a change of policy. He accepts that a range of 20% to 40%, had it been stated in the local plan, would not have failed for want of detail.
- Mr Holgate also seeks to rely on the Inspector’s report following the local public inquiry conducted as part of the procedure leading to the 1997 Plan. Having suggested a modification to paragraph 3.36 (as now numbered and cited), which the Council accepted, the Inspector added: “In my view the evidence relied on by the Council is sufficient to identify that a need exists [that is for affordable housing] but is probably an inadequate basis for establishing a target. However, as indicated above, I do not consider the figure of 50% should be regarded as a target and the revised wording that I am suggesting would make this clear. The text makes it clear that the proportion of affordable housing on specific sites would be subject to negotiation and the 20% figure would be a basis for negotiation. In these circumstances I do not consider that there is any conflict with Government advice.” Reliance is also placed on the fact that the Council accepted the Inspector’s recommendations for the reasons given and the reasons, as understood by the Council, included a statement that the references in the earlier draft to 20/50% were “misleading”.
- That the adopted SPG does have a place in the material which may be relied on when planning decisions are made is not in dispute. Its adoption is contemplated in PPG 12 and its role defined. The Supplementary Planning Guidance must derive out of and be consistent with the local plan (paragraph 3.16 of PPG 12). It is not suggested in this case that the Council have acted in bad faith and have adopted the SPG as a way of avoiding subjecting their policies to public scrutiny, though that is suggested to be the effect of the course followed.
- In my judgment, the Council have not exceeded their powers in that the SPG in question meets the specified criteria. It is not suggested that PPG 12 is unlawful as contrary to the Westminster decision. The wording of paragraph 3.36 of the explanatory material in the local plan was suggested by the Inspector herself and adopted by the Council. Having put the need for social housing at 50% of new housing, 20% is stated to be the minimum which in normal circumstances the Council can look for. I do not consider a policy which seeks “generally” and on “all suitable sites” 30% of a proposed development for social housing to be inconsistent with the local plan policy. I agree with the judge’s conclusion to that effect and would decide the case on that short point. To hold otherwise would be to take too inflexible a view of the policy in the local plan.
- I do not consider that the Inspector’s further comments, even if admissible as an aid to construction, or the Council’s adoption of her reasoning precludes that conclusion or indeed suggests that the SPG is beyond the powers of the Council. The fact that the Council have, in documents prepared with a view to a review of the local plan, referred to a new policy cannot prevent the Court from making a judgment upon the wording and effect of the two documents, the local plan and the SPG.
- On that view of the case, broader considerations as to how to give effect to changes in planning policy do not arise. What this case has highlighted, however, is the difficulty in implementing changes in planning policy coherently and timeously when the system is plan-led and plans take so long to prepare and revise. The plan-led system is given statutory force by section 54A of the 1990 Act and is supported in PPG 12, paragraph 1.1. The Guidance acknowledges that the plan-led system can only be successful if plans are in place and are kept up to date (paragraph 1.2) and calls for regular review and review in full at least once every five years. The present Oxford Local Plan was adopted only after six years of its stated duration had elapsed and the position is likely to be the same in the present review. Moreover, the present review, thought in 1999 to involve only “fine tuning”, is expected to take seven years. If a review itself takes seven years, that is blatantly inconsistent with a full review completed at five year intervals.
- This is not necessarily a criticism of the Council. I do not know why the slippage in the adoption of the plans has occurred or why the statutory procedures take so long. The point I would make is that the plan-led system cannot sensibly provide for changes in planning policy, which changed social and economic circumstances may require, if the relevant plans take so long to prepare and review. I note that in PPG 12 it is stated, at paragraph 1.3, that the then current delay in implementing the plan-led system is regarded as unacceptable.
- It appears that in practical terms the scope of the problem is reduced by the fact that draft plans can be treated as material considerations. In his submissions in reply, Mr Holgate submits that a proposed policy can just as easily be expressed as an alteration to the Local Plan as in SPG. On that basis, the issue becomes one of terminology. Had the SPG been described and treated as a first draft local plan on this topic, it could have been treated as a consideration material to planning decisions. As it is, those making planning decisions, whether members of the Council, independent Inspectors or the Secretary of State will need to have regard to the adopted local plan, as now explained and particularised in the SPG, and, as a material consideration, the draft local plan for 2001 to 2016 (thereby including 2002) which draft gains more force as the review proceeds.
- Local planning authorities should, however, bear in mind, and I would respectfully underline, Lord Scarman’s comment in Westminster, reflected in paragraph 3.17 of PPG 12, the effect of which is that SPG must not be used as a device to avoid legitimate public scrutiny of local planning policies in accordance with statutory procedures. It follows from the Westminster decision that what section 36 of the 1990 Act requires to be in a local plan must be in a local plan, and subject to the local plan review procedure. I consider this to be a continuing duty in the plan-led system and not one which applied only at the point of adoption, an expression used at one stage by the judge (paragraph 67). The definition of supplementary planning guidance in PPG 12, which has a statutory status by reason of Regulation 20(2) of the 1999 Regulations, supports that conclusion.
- I deal briefly with Mr Holgate’s other submissions. As to the second submission, provided the course adopted by the Council was lawful, as I have found it was, I do not consider that they are in breach of duty in failing expressly to consider other ways of proceeding. It is submitted that there is an additional duty upon the Council to ensure fairness. A partial review of the local plan should have been considered as an alternative to the SPG. Possible courses of action should have been placed before the members of the Council.
- I do not consider that a lawful course of action is in present circumstances rendered unlawful by a failure expressly to consider other possible courses of action. While there is a duty to consult the public before adopting SPG, a duty to consult as between SPG and a local plan review does not arise and I cannot discover a duty expressly to compare the merits of one course of action with another. Warren vUttlesford District Council [1997] JPL 1130 does not assist the appellants. The Court considered whether a local authority, before adopting a local plan, was required to arrange a fresh local inquiry and the Court held that no such obligation arose. The situation is far removed from the present one.
- Insofar as the third ground raises questions not already considered, I see no merit in it either in respect to paragraph 22 of the SPG or the other paragraphs challenged. It is in any event conceded that the appellants cannot succeed in relation to paragraph 18, 26, 27 and 29 if they fail on the paragraph 22 submission. I have not thought it necessary to consider the Council’s correspondence with the Government Office for the South East. The Office made favourable comments about the Council’s SPG.
- The Council’s consultation exercise with respect to the SPG is criticised in ground four in that the officer’s assessment of the responses from consultees, for submission to the Council, related only to the exercise in 2001 and not to that in 2000. It is also submitted that the officers’ report, by way of schedule, did not sufficiently deal with the points raised by objectors and was lacking in analysis and reasoning. It was not the conscientious exercise contemplated by Lord Woolf MR in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at 258 (paragraph 108).
- Mr Holgate has referred the Court to the relevant documents and I do not consider that the SPG can be quashed for want of consultation. The representations received in 2000 were in substance repeated in 2001 and the officers of the Council were aware of them. Amendments were made to the original draft. The analysis of representations provided for members of the Council, together with the officer’s comments, was terse but does convey in summary form the points raised. It would be to impose too high a standard on the Council to quash the SPG in this case for want of consultation. The contrast between this consultation and the local inquiry procedure is well made but, if the Council were permitted to proceed by way of SPG, the consultation was in the circumstances sufficient.
- For the reasons I have given, I would dismiss this appeal.
- I agree.
- I also agree.
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
MR JUSTICE OUSELEY
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE MUMMERY
and
MR JUSTICE NELSON
____________________
| The Queen on the application of J A Pye (Oxford) Ltd, Bellway Homes Ltd and The Housebuilders Federation | Applicants | |
| - 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:
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:-
“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: