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High Court Allows Challenge to ‘Stopgap’ Affordable Housing Guidance

Gregory Jones QC
Caroline Daly

The High Court (Jay J) has allowed a challenge to the adoption of interim affordable housing guidance by Craven District Council.

The adoption of the guidance document, entitled “Negotiating Affordable Housing Contributions” (“NAHC 2016”), was challenged on the basis that it contains statements that fall within Regulation 5 of the Town and Country Planning (Local Planning) (England) Regulations 2012, and must therefore be a development plan document or, in the alternative, a supplementary planning document. The Council had failed to comply with the procedural requirements for adopting either development plan or supplementary planning documents under the 2012 Regulations. The Claimant, Skipton Properties Limited, further argued that there had been a breach of the SEA Directive and the Environmental Assessment of Plans and Programmes Regulations 2004 on the basis that the adoption of the guidance document required an environmental assessment, which was not carried out.

Mr Justice Jay allowed the claim on the ground that the NAHC 2016 is a development plan document and therefore required an SEA. He concluded as follows:

“In my judgment, the correct analysis is that the NAHC 2016 contains statements in the nature of policies which pertain to the development and use of land which the Defendant wishes to encourage, pending its adoption of a new local plan which will include an affordable housing policy. The development and use of land is either “residential development including affordable housing” or “affordable housing”. It is an interim policy in the nature of a DPD. It should have been consulted on; an SEA should have been carried out; it should have been submitted to the Secretary of State for independent examination.”

Mr Justice Jay also indicated that the quest for the true construction and meaning of Regulation 5 of the 2012 Regulations was “unnecessarily challenging” and invited those responsible for the regulations to consider redrafting them. 

This decision will be of significant interest to local authorities that do not have up-to-date local plans. In a coda to the judgment, Mr Justice Jay advised that, in circumstances in which a local planning authority finds itself with a policy vacuum, the “correct course” is to “press on with the timeous preparation of up-to-date local plans” and “in the interregnum between draft and adoption, deploy these as material considerations for the purposes of the rights and duties conferred by the 2004 Act”.  

Gregory Jones QC and Caroline Daly acted for the successful Claimant, Skipton Properties Limited, instructed by Walton & Co.