Court finds guidance on affordable housing planning obligations unlawful

The High Court has taken the unusual step of interfering with Government policy in West Berkshire District Council and another v Department for Communities and Local Government. In that case the court ruled that the changes to the National Planning Practice Guidance (NPPG) to exempt small developments from affordable housing contributions and the vacant building credit are unlawful.


The Claimants, Reading Borough Council and West Berkshire District Council brought a challenge to quash the amendments to the NPPG (contained in paragraphs 012-023). These changes were brought in by the Department for Communities and Local Government (DCLG) last November to make smaller developments more financially viable to developers.

The Councils highlighted to the Court that the new policy had implications for local authorities in discharging their responsibilities under the planning system to provide affordable housing. For example, local authorities would have to release more housing land on a continuing basis in order to meet a shortfall in land for affordable housing. Another key issue raised in the case was whether the policy was unlawful on grounds of inconsistency with the statutory scheme for local plans.

The Claimants also argued that the DCLG had failed to comply with the public sector equality duty under the Equality Act 2010 – this provides that a public authority must, when exercising its functions, take account of the need to promote equal opportunity and avoid discrimination.


The Court agreed with the Claimants and made an order quashing paragraphs 012-023 of the NPPG. It also granted a declaration that the “written ministerial statement” which introduced the paragraphs must not be treated as a material consideration in development plan procedures or decisions, although it stopped short of quashing the statement itself. The main grounds for the Court’s decision were:

1. Inconsistency with statutory framework

The new policy was incompatible with the statutory framework of the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004 and therefore unlawful. The new policy did not give guidance to local authorities that should be considered alongside local plan policies. Instead, it gave thresholds below which affordable housing should not be sought when any planning application for housing development in England was determined.

Under the new policy, those thresholds were to be applied directly, and with immediate effect, in determining planning applications, notwithstanding any local plan policy that was inconsistent with it. Furthermore, the policy did not allow any transitional period within which adopted local plan policies would continue to be given full weight, or for Local Planning Authorities to consider whether their local plan policies should be revised in light of the new national guidance.

2. Unfair consultation process

The DCLG was found to have failed to give sufficient reasons for the proposal. The court gave weight to the fact that the new policy was justified by the “disproportionate burden” on small-scale developers. However, there was insufficient explanation provided on what the “disproportionate burden” was, that the proposed policy would address. In this way it was not possible for the consultees to properly respond to the consultation.

3. Failure to take account of material consideration

There was no dispute that one effect of the new policy would be to reduce the amount of land available to meet affordable housing needs and that more land would need to be released in these areas. While the DCLG intended that the new policy would help to prevent development stalling on small sites, the adverse effects on land supply were equally and obviously relevant to a proper weighing of the benefits of the proposed policy.

4. Public sector equality duty

The impacts on disabled persons and ethnic minorities who disproportionately rely on affordable housing had also not been considered when the policy was announced.


We are now in a situation where applicants for planning have either benefited financially if planning permission was granted before this decision was made, or will be denied the benefit of the guidance until and unless the Government clarifies how it will respond to this ruling.

In order to provide consistency in the planning process the Government will need to act quickly to publicise how it will respond to this judgment. The Government’s aim in introducing this policy was to tackle problems and costs associated with brownfield development and improve the viability of smaller scale development so as to encourage smaller builders. To date, as a result of the decision, the DCLG has removed the new policy from the NPPG.


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