The High Court has confirmed the need to tread a common sense path through the mire of the Local Plan regulations, in quashing a supplementary planning document (SPD) that strayed into Development Plan Document (DPD) territory in William Davis Ltd & Ors v Charnwood Borough Council  EWHC 3006 (Admin) (23 November 2017).
SPDs escape the examination process needed for DPDs. They are often seen as simply elaborating on existing policies. The Town and Country Planning (Local Planning) (England) Regulations 2012 are more nuanced: SPDs are allowed to contain policy, but it must be justified and must not conflict with the adopted development plan (Reg 8(3)). SPD policy cannot supersede development plan policy and is merely a material consideration.
Substance Over Style
Local Development Documents (LDDs) that have the characteristics listed in regulation 5 must (under reg 6) be prepared as Local Plans (i.e. DPDs). SPDs are defined negatively (reg 2) as anything that is not a Local Plan. In practice, this means a document containing statements regarding "any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land encouraged by a [Local Plan]".
The regime is messy and open to abuse where SPDs stray into Local Plan territory. SPDs cannot contain policy identifying development and use of land which the authority wishes to encourage, making site allocations or site allocation policies or setting development management to guide application decisions.
In Charnwood, Gilbart J quashed policies in a housing SPD. The core strategy contained strategic policies with high level targets for housing types to meet demographic needs, with a "subject to viability" affordable housing target and a requirement that types, tenures and sizes of homes would be appropriate having regard to identified housing needs and character of the area. The SPD prescribed different percentages for all house sizes, and a 60-70% affordable housing requirement for some unit types.
The statements were quashed: they contained policies; and they clearly related to forms of development to be encouraged and imposed development management policies against which applications could be refused (or conditions to control unit mix imposed) (under reg 5). Although there was some legitimate SPD 'guidance' that did not save the offending policies (citing R (Skipton Properties Ltd) v Craven District Council  EWHC 534 (Admin)). They could only be adopted as a Local Plan (DPD), following examination.
The judgment emphasises several points that authorities and affected parties should pay attention to:
- where an 'SPD' is promoted as a "stop gap" in the absence of saved policies, by definition it cannot be supplementary (and is itself a primary policy assuming DPD status as in the Skipton case);
- a housing mix policy which could lead to refusal on the grounds that the proposed mix is unacceptable (or an outline application condition imposing a particular mix) is a statement regarding the development of land and development management policy;
- uncertainty arising from the "very poor" drafting of the Regulations should be dealt with in light of the "realities of development control" and the fundamental importance of robust and independent examination of the development plan;
- viability impacts were material and had adopting the policies without consideration of those impacts was unlawful;
- SPD should not be used for making an alteration to plan policy to address new evidence.
Authorities will need to be far more careful about the statements they include in what purport to be SPDs on issues such as housing mix and affordability but also density, height and other matters. There is still a tendency to sneak swathes of untested, unjustified and ineffective policy in through the back door via dodgy SPDs.
The judgment comes when the Mayor of London's Affordable Housing Supplementary Planning Guidance (SPG) document is under legal attack for having strayed into the realms of policy, despite being clearly stated not to constitute policy and arguably not to extending beyond the policies in the London Plan itself.
It remains to be seen whether that challenge will be recast as a challenge to specific decisions which – wrongly – treat the SPG's contents as a policy or a fixed position (which often feels like it is the case).
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