QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1)THE QUEEN ON THE APPLICATION OF McCARTHY AND STONE RETIREMENT LIFESTYLES LIMITED
(2) CHURCHILL RETIREMENT LIVING LIMITED
(3) PEGASUS LIFE LIMITED
(4) RENAISSANCE RETIREMENT LIMITED
|- and -
|THE MAYOR OF LONDON ON BEHALF OF THE GREATER LONDON AUTHORITY
MR PAUL BROWN QC (instructed by TRANSPORT FOR LONDON) for the Defendant
Hearing dates: 1 and 2 May 2018
Crown Copyright ©
MR JUSTICE OUSELEY :
The Mayor's planning powers
The London Plan policies and the SPG
"A The maximum reasonable amount of affordable housing should be sought when negotiating on individual private residential and mixed use schemes, having regard to:
a) current and future requirements for affordable housing at local and regional levels identified in line with Policies 3.8, 3.10 and 3.11 and having particular regard to the guidance provided by Mayor through the London Housing Strategy, supplementary guidance and the London Plan Annual Report (see paragraph 3.68).
b) affordable housing targets adopted in line with Policy 3.11.
c) the need to encourage rather than restrain residential development (Policy 3.3).
d) the need to promote mixed and balanced communities (Policy 3.9).
e) the size and type of affordable housing needed in particular locations.
f) the specific circumstances of individual sites.
g) resources available to fund affordable housing, to maximise affordable housing output and the investment criteria set by the Mayor.
h) the priority to be accorded to provision of affordable family housing in policies 3.8 and 3.11.
B. Negotiations on sites should take account of their individual circumstances including development viability, the availability of public subsidy, the implications of phased development including provisions for re-appraising the viability of schemes prior to implementation ('contingent obligations') and other scheme requirements.
C. Affordable housing should normally be provided on-site. In exceptional cases where it can be demonstrated robustly that this is not appropriate in terms of the policies in this Plan, it may be provided off-site. A cash in lieu contribution should only be accepted where this would have demonstrated benefits in furthering the affordable housing and other policies in this Plan and should be ring-fenced and, if appropriate, pooled to secure additional affordable housing either on identified sites elsewhere or as part of an agreed programme for provision of affordable housing."
"Contingent obligations" are defined in the London Plan Glossary as follows:
"The use of s106 agreements to enable and define mechanisms for the re-appraisal of viability prior to the implementation of schemes in whole or in part which are likely to take many years to implement. These mechanisms recognise the need to maximise reasonable affordable housing provision, and to address the economic uncertainties which may arise over the lifetime of a proposal. Such provisions are sometimes incorrectly called 'overage' provisions."
The supporting text refers in [3.72] to the Mayor seeking "to maximise affordable housing output and expects developers to make the most effective use of available housing resources to achieve this objective."
"4.3 CONTINGENT OBLIGATION REVIEW MECHANISMS AND CASCADES
4.3.1. To maximise affordable housing output (and other public benefits) on schemes with long build out times, at times of economic uncertainty, and/or where there are significant changes in costs or values the Plan provides support for the use contingent obligations and review mechanisms.
4.3.2 Contingent obligations and review mechanisms provide a reappraisal mechanism which specifies the scope of a review of viability for longer term, non-phased schemes and for each phase of phased developments…
4.3.3 Review mechanisms are encouraged to be considered when a large scheme is built out in phases and/or is built out over a long period of time. The mechanism should specify the scope of a review of viability for each phase or relevant phase of development. For schemes with a shorter development term consideration should be given to using S106 clauses to trigger a review of viability if a scheme is not substantially complete by a specified date. Such approaches are intended to support effective and equitable implementation of planning policy of planning policy while also providing flexibility to address viability concerns.
4.3.4 These arrangements must address the requirements of legislation and national guidance, which can provide the basis for securing affordable housing. In addition they should recognise that applications must be determined on the basis of the information available at the time whilst taking account of the fact that viability may be different at the time of implementation."
"8 The second part of the SPG sets out the 'threshold approach' to viability, which is where the approach to viability information differs depending on the level of affordable housing being provided.
Fast Track Route
9 Applications that meet or exceed 35 per cent affordable housing provision without public subsidy, provide affordable housing on –site, meet the specified tenure mix, and meet other planning requirements and obligations to the satisfaction of the LPA and the Mayor where relevant, are not required to submit viability information. Such schemes will be subject to an early viability review, but this is only triggered if an agreed level of progress is not made within two years of planning permission being granted (or a timeframe agreed by the LPA and set out within the S106 agreement).
Viability Tested Route
10 Schemes which do not meet the 35 per cent affordable housing threshold, or require public subsidy to do so, will be required to submit detailed viability information (in the form set out in Part three) which will be scrutinised by the Local Planning Authority (LPA), and where relevant the Mayor, and treated transparently. Where a LPA or the Mayor determines that a greater level of affordable housing could viably be supported, a higher level of affordable housing will be required which may exceed the 35 per cent threshold. In addition, early and late viability reviews will be applied to all schemes that do not meet the threshold in order to ensure that affordable housing contributions are increased if viability improves over time.
11 The different approaches between these two routes provide a strong incentive for applicants to meet the 35 per cent affordable housing threshold, which offers far greater certainty and the opportunity to move away from protracted and uncertain viability negotiations. This will help to deliver more affordable housing through the planning system whilst also ensuring development comes forward at faster rate."
"…decision-takers may also give weight to relevant policies in emerging plans according to:
- the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);
- the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and
- the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given)."
The Claimants' evidence
Ground 1: the lawfulness of the SPG: is it policy in disguise? Is it inconsistent with the London Plan?
Issue 2: Strategic Environmental Assessment
Ground 3: the public sector equality duty, PSED
"have due regard to the need to –(a) eliminate discrimination… prohibited by or under this Act; (c) advance equality of opportunity between persons who share a relevant protected characteristic and person who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it."